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Madison’s Nightmare: How executive power threatens American democracy

August 5, 2009 | Faculty

Though he campaigned on a theme of change, Barack Obama in his first months in office has already asserted inherent presidential power in some ways reminiscent of his Republican predecessors. While abandoning the Bush Administration’s most audacious claims, President Obama has asserted the state secrets privilege in national security litigation, resisted judicial review of enemy combatant detention in Afghanistan, issued signing statements suggesting constitutional reservations about bills he has signed into law, and pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.

With Madison’s Nightmare, published by University of Chicago Press in 2009, Professor Peter Shane shows how ambitious assertions of presidential power are the logical outcome of a decades-long trend that has seen presidents of both parties wage an assault on the basic checks and balances of the U.S. government.

Starting with Reagan and the elder Bush, continuing under Clinton, and culminating most spectacularly under the recent Bush administration, this “aggressive presidentialism” has diminished the role of the other branches of government and led to ideological, inappropriate, and sometimes downright illegal actions. If we want our government to work as the Founders intended, simply electing a new president is not enough: both liberals and conservatives must launch a wide-ranging reform effort that will change all levels of government and support a renewed culture of accountability.

Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law and has authored or co-authored five books and over 50 law review articles.

Professor Shane came to Ohio State in 2003 from Carnegie Mellon University’s H. John Heinz III School of Public Policy and Management. He is an internationally recognized scholar in administrative law, with a specialty in separation of powers law.