How Democracies Die

by Steven Levitsky

The immense powers of the executive branch create a temptation for presidents to rule unilaterally—at the margins of Congress and the judiciary. Presidents who find their agenda stalled can circumvent the legislature by issuing executive orders, proclamations, directives, executive agreements, or presidential memoranda, which can assume the weight of law without the endorsement of Congress. The Constitution does not prohibit such action. Likewise, presidents can circumvent the judiciary, either by refusing to abide by court rulings, as Lincoln did when the Supreme Court rejected his suspension of the writ of habeas corpus, or by using the prerogative of the presidential pardon. Alexander Hamilton argued in Federalist 74 that because the power of pardon was so far-reaching, it would “naturally inspire scrupulousness and caution.” But in the hands of a president without scruples or caution, the pardon can be used to thoroughly shield the government from judicial checks. The president can even pardon himself. Such action, though constitutional, would undermine the independence of the judiciary.