Steven G. Calabresi

Abstract: This book is the first to undertake a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory, that the Constitution gives the president the power to remove and control all policy-making subordinates in the executive branch, has been the subject of heated debate since the Reagan years. To determine whether the Constitution creates a strongly unitary executive, Steven Calabresi and Christopher Yoo look at the actual practice of all forty-three presidential administrations, from George Washington to George W. Bush. They argue that all forty-three presidents have been committed proponents of the theory of the unitary executive, and they explore the meaning and implications of this finding.

Abstract: Our thesis is that either the text or the relevant "legislative" history, considered separately, demonstrates that the founding generation fully embraced and wrote into the Constitution the "myth" of a chief administrator constitutionally empowered to administer all federal laws. We think the originalist textual and historical arguments for the unitary Executive, taken together, firmly establish the theory.

Abstract: In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history. This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. In this Article, we call for a change to the life tenure rule for Supreme Court Justices. To resolve the problems of life tenure, we propose that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.

Abstract: International organizations are widely believed to undermine domestic democracy+ Our analysis challenges this conventional wisdom, arguing that multilat- eral institutions can enhance the quality of national democratic processes, even in well- functioning democracies, in a number of important ways: by restricting the power of special interest factions, protecting individual rights, and improving the quality of dem- ocratic deliberation, while also increasing capacities to achieve important public pur- poses+ The article discusses conflicts and complementarities between multilateralism and democracy, outlines a working conception of constitutional democracy, elabo- rates theoretically the ways in which multilateral institutions can enhance constitu- tional democracy, and discusses the empirical conditions under which multilateralism is most likely to have net democratic benefits, using contemporary examples to illus- trate the analysis+ The overall aim is to articulate a set of critical democratic standards appropriate for evaluating and helping to guide the reform of international institutions+ Many scholars and popular commentators assert that international organizations undermine democracy+ Global governance, they argue, is distant, elitist, and tech- nocratic+ Debates over multilateralism are increasingly waged between critics, who point to the ways in which international institutions undermine domestic demo- cratic processes, and defenders, who stress pragmatic benefits+ In this article we challenge this conventional framing of the issue+ We do so by arguing that participation in multilateral institutions—defined broadly to include international organizations, regimes, and networks governed

Abstract: President Obama has trumpeted transparency as a major part of his reform agenda, promising an "unprecedented" degree of governmental openness and overseeing a variety of open government reforms, from changes in Freedom of Information Act policies to the creation of new websites like Recovery.Gov. Although transparency is politically popular, and the Obama Administration benefits in the short run by contrasting itself with the Bush Administration's reputation for secrecy, in the long run President Obama's rhetoric on openness in government may backfire politically. Too much emphasis on making government a fishbowl will only raise expectations about an unattainable or undesirable level of openness. Transparency has clear benefits but it also has its costs, as when, for example, the prospect of disclosure dampens internal deliberation and self-criticism by government officials. The real choice for government, then, is how much transparency, and what type, to offer over different processes. The Obama Administration has already found itself needing to make tradeoffs and place limits on transparency, and it is likely to continue to do so in the years to come. Yet members of the public, and certainly open-government activists, are unlikely to appreciate the need for making such tradeoffs, generating disappointment among the administration's supporters and charges of hypocrisy by its opponents. It remains unclear whether Barack Obama will ultimately earn the mantle of the "transparency president" - or whether the unrealistic hopes for openness in government he has raised will, when unfulfilled, only serve to reinforce public cynicism about government.Posted paper, uploaded January 2010, is the published version of the working paper originally posted July 2009.

Abstract: President Obama has trumpeted transparency as a major part of his agenda, promising “unprecedented” openness throughout the federal government. Although Obama benefits politically from the contrast with his predecessor's reputation for secrecy, in the long run an excessive emphasis on fishbowl governance can raise unrealistic expectations and ultimately backfire. After all, at some point transparency has its costs, such as when disclosure dampens internal deliberation or undermines privacy. The real issue, then, is how much transparency and what type. Despite its rhetoric, the Obama Administration has placed limits on transparency and will likely continue to do so. Yet members of the public and open government activists are unlikely to appreciate the need for such limits, leading to disappointment and charges of hypocrisy. It remains unclear whether Barack Obama will earn the mantle of the “transparency president”—or whether the hopes he has raised will, when unfulfilled, only reinforce public cynicism.

Abstract: One of the little understood, but most powerful and disruptive tensions in established aid agencies lies in the clash between the compliance side of aid programs—the counter-bureaucracy—and the technical, programmatic side. The essential balance between these two in development programs has now been skewed to such a degree in the U.S. aid system (and in the World Bank as well) that the imbalance threatens program integrity. The counter-bureaucracy ignores a central principle of development theory—that those development programs that are most precisely and easily measured are the least transformational, and those programs that are most transformational are the least measurable. Relieving the tension between the counter-bureaucracy and development practice would require implementing new measurement systems, conducting more research on overregulation and its effects, reducing the layers of oversight and regulation, and aligning programmatic goals with organizational incentives. The Clash of the Counter-bureaucracy and Development