Brief Review of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy

This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.

I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.

Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.

And some errors crept in. For example, Savage writes that before 1937, a bloc of Supreme Court Justices “kept striking down minimum wage, work-week, and child-labor laws on the grounds that the Constitution has an unwritten right to contract for one’s labor one might see fit.” In fact, the Court never invalidated a child labor law on such grounds, and invalidated only one work-week law (Lochner), while upholding about a dozen other hours laws.

All of which to say that I recommend the book, but I spotted enough overstatements and errors that I would not rely on any particular factual statements in the book without independent verification.

UPDATE: Charlie Savage responds in the comments, and I respond to his response.