Conservative Jurisprudence and Executive Power

Atrios is puzzled about the current conservative predisposition for ever-expanding executive power: “Certainly the conservative movement wants the George Bush White House to have free reign as a practical matter, but I really wasn’t aware that this was a genuine conservative principle.” Actually, the idea that executive power should be strengthened was one major part of the jurisprudence that conservatives started to advocate in the 70s and 80s. Antonin Scalia’s academic specialty was administrative law, not constitutional law, and he has long been a strong proponent of expanded executive power. As Richard Brisbin puts it:

Scalia’s votes an opinions about the structure of federal governmental institutions have emphasized executive leadership of policymaking. He wants the executive to lead the conservative revival…his faith in the wisdom of [executive] officials–within their sphere of constitutional authority–has usually been greater than that of most pragmatic liberal judges and the general public.*

This was expressed most famously in his solo dissent in Morrison v. Olson, but it’s a consistent theme in Scalia’s jurisprudence, and can also be seen in a lot of conservative scholarship during the Reagan administration. It’s not surprising that Administration officials would try to make this a selling point for Miers. The thing is, there is actually some merit to the position that the executive should be granted greater policy-making discretion. There are some really bad elements to Scalia’s personal version, such as his narrowing of the Freedom of Information Act, and of course it’s extremely bad when Article II is read to give the President unlimited authority as long as a war is going on, but there’s something to be said for the generally greater leeway given to bureaucrats acting within their authority in European political systems.

Which brings us to Atrios’ point about the tendency of particular partisan control of institutions to color people’s evaluation of the desirability of particular arrangements; it’s not an accident that conservatives started strongly advocating stringer executive power under the Nixon Administration, and intensified these calls under Reagan. To run at it from the other angle, the Clean Air act, like a lot of legislation delegating power to executive agencies, generally set very vague standards but also made it easy to sue executive officials. You can see the logic: a Democratic Congress trusting generally liberal courts to keep executive agencies currently controlled by a Republican in check. But, of course, it would have been preferable more specific standards rather than trusting the courts, given how conservative the courts are likely to be in future decades. And, in this is what I was trying to argue in my recent post about judicial supremacy: it’s important to step outside of the Court’s current membership, or recent decisions that you like, when evaluating the merits of judicial review. The same goes for any changes in the separation of powers; different people will control institutions under the new rules, and conservatives should indeed remember that Democrats will return to the White House before signing off on justices with extremely broad views of executive power. Precedents can last a long time.

*Antonin Scalia and the Conservative Revival, 85.