Berger’s Article Published in Drake Law Review

Berger’s Article Published in Drake Law Review

01 Nov 2017    

Professor Eric Berger

Professor Eric Berger’s article Of Law and Legacies was published in the Drake Law Review. The article is an invited symposium contribution. The article abstract is below: 

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies.  Americans respect or even revere many presidents despite their apparent constitutional violations.  Some unconstitutional actions, though, appear more forgivable than others.  The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue.  Constitutional law, as articulated by lawyers and judges, is not irrelevant to presidential legacies, but it rarely defines them.  

While some of President Obama’s unilateral executive actions raised serious constitutional questions, it is unlikely his legacy will turn on those measures’ legality.  In most cases, President Obama followed past presidential practices and offered colorable (though admittedly contestable) legal defenses.  Moreover, context helps explain, if not completely justify, many of Obama’s controversial actions.  To this extent, historians and members of the general public are likely to view the Obama presidency through a broader, non-legal lens, considering, inter alia, the challenges he inherited, the policies he helped implement, and, especially, the vitriolic opposition he faced in Congress. 

Indeed, the lead constitutional story from the Obama years will likely highlight not particular executive actions but rather our constitutional system’s deficiencies more generally.  American politics became increasingly dysfunctional during Obama’s presidency, and they have not improved since.  Dysfunctional politics, of course, ought not immunize executive actions from legal attack.  However, the depth of this dysfunction should encourage lawyers to broaden their focus beyond narrow questions of legality in individual cases to more fundamental concerns about the health of our constitutional democracy.