Book Reviews

years I escaped categorization. I was always an inference, not a given. So tasks such as regarded as rather strange, sometimes as judging the right amount of eye contact promising, sometimes as a sucker who could strike us as puzzling, however much practice be talked out of his allowance, sometimes we get at them. as the kid who could be goaded into saying funny things, and sometimes as someone In a Different Key stubbornly intent on creating disruptions. I I naturally approached this book with special have been regarded, in short, under a lot of interest, but with some anxiety as well. Per- headings, but never in my youth was I spo- haps it was because I find the easy resort to ken of as autistic or as an example of Asperg- institutional confinement a personal affront. er’s syndrome or as anything else of the sort. I’ll say more about confinement below. This is likely for the best: I was well beyond Autism as an intellectual and medi- all need for official diagnosis or classification cal construction is a product of the 20th before I started hearing such terms. century. As In a Different Key explains, the diagnosis of autism as it is understood Looking People in the Eye today can be traced back to the work of Leo Eye contact is a big thing. For years—for Kanner, the founder of the children’s psychi- decades—I struggled with it. It isn’t intuitive atric department at Johns Hopkins Hospital for me to look people in the eye while I speak in Baltimore. In 1942, Kanner wrote to the to them. But I’ve learned, slowly over the mother of one patient that he had “come decades, that it isn’t good to look away from to recognize for the first time a condition In a Different Key: their eyes either. People seem to associate which has not hitherto been described by that with dishonesty. (Why? I’m not sure. psychiatric or any other literature,” one that The Story of Autism Does the supposed “look me in the eyes and consisted of the inability of certain children, By John Donvan and Caren Zucker say that” lie detector ever work?) One relat- including her boy, to relate to other people. Crown Publishers, New York, NY, 2016. 670 pages, $30. ed problem, though, is that if I look at an in- He called this condition, “autistic disturbanc- Reviewed by Christopher C. Faille terlocutor’s eyes too intently, then he or she es of affective contact.” Autism is part of who I am. Or, at least, I will think I’m being creepy. So I’m between In 1943, he would use “Autistic Distur- believe so. There’s never been anything so Scylla and Charybdis. I try to get it right, to bances of Affective Contact” as the title of an formal as a diagnosis, but people who love look people just steadily enough in the eyes, article he published in a professional journal. me, including some with credentials as but no more steadily than that. It’s tricky. But the name obviously required shortening. health care providers, have told me, usually Neurologically, eye contact isn’t supposed Before this time, psychiatrists had some- with some effort at softening the presumed to be tricky. According to the dominant times used the adjective “autistic,” but they blow, that I am “on the spectrum.” I have working hypothesis in the study of autism, had generally used it to describe a symptom long since given up any impulse to argue the human brain, beginning even before the of schizophrenia, not as the name or part of the point. first birthday, develops neural pathways that the name of a condition unto itself. Turning I don’t believe I’ve ever owned the term allow for a “theory of mind,” a process that in on the self, auto-ism, an inner-driven “autism” in public before, so I will use this is supposed to be complete by about age 5. social withdrawal—this occurs periodically book review, then, as a coming-out moment. These pathways mean that one thereafter in the life of schizophrenics. But it is not a The readers of The Federal Lawyer know proceeds on the premise that the other per- defining characteristic of schizophrenia: For something of me, from my numerous book son, the one at whom you are looking, has sufferers with that condition, the social with- reviews in the magazine. You have had a subjective side too and that he is looking drawal comes and goes. For those with au- plenty of opportunities to judge both my at you, too, when your eyes meet. Autism, tism, by contrast, it is of the essence. This is analytical abilities and the sort of stylistic anywhere on the spectrum, is at its heart the case wherever on the “autism spectrum” quirks that enter into my prose style. That a consequence of some disruption in this one finds oneself. doesn’t make you diagnostic authorities, but process. it does mean that you are an appropriate Yes, autistic folks can figure out that The Legal Profession Since the community to whom to speak about this other people are thinking, too, but the Mid-20th Century aspect of my life. important point is this: We have to figure For a sense of why this should matter to the I am in the second half of my sixth it out—over and over again. The fact that bench and bar of the 21st century, one might decade, and am very glad that in my younger we’re surrounded by other minds is itself look at an anecdote early in In a Different

72 • THE FEDERAL LAWYER • June 2016 Key, about a distinguished midcentury Deinstitutionalization has taken some hits of the spectrum, those who seem utterly lawyer, John P. Frank (1917-2002). Frank’s lately, both in the popular culture and in the uncommunicative, nevertheless often have young son suffered from a severe brain trau- law journals. There is certainly the chance quite expressive faces. This observation was ma that impaired his intellectual develop- that it has gone too far in some respects or included, for example, in the writings of ment, speech, and growth. In the late 1940s, that it includes its own abuses. But the gist Kanner, who drew attention to the “impres- Frank found that every doctor he consulted of this book is right. Deinstitutionalization sion of serious mindedness” on the face suggested that there was no prospect for a has been much more of a blessing than a of one of his patients, and who wrote that life for “Petey” outside of an institution. So curse. It should be celebrated and prized in they were all “unquestionably endowed” he consulted with two friends of his who the hope that its gains will never be lost. with unexpressed cognitive potential. Such worked outside the medical profession: Jus- Lawyers, of all people, must under- impressions give their parents and other tices Wiley Rutledge and Hugo Black. Each stand that. Law is largely the business of observers hope that their loved ones’ com- advised him in strong terms against trying to classifying people where classifications are munication of those locked-away thoughts raise Petey at home. The father eventually necessary (felons versus non-felons, for can be facilitated in some manner, perhaps complied, and Petey remained institutional- example). But lawyers ought to get and stay by friendly hands assisting a patient’s own ized until his death from old age in 2010. out of the business of classifying people hands in typing on a keyboard. Petey Frank was not autistic, and his in- where such classifications are not necessary That hope became a movement, largely stitutionalization is but a very small piece in and where they can do disastrous harm to catalyzed by an Australian woman, Rose- the Big Picture of this book. His story is here innocent lives. mary Crossley, who first developed FC in to make the point that, even for someone order to communicate with a young woman such as his well-connected father, who was Three Controversies Involving Initials diagnosed with cerebral palsy. FC was intro- plainly disturbed by the idea of giving over Many fascinating questions are discussed duced to the United States, and to the world his son to the care of strangers, there was in the course of this thoroughly researched of autism treatment, by a Syracuse-area an almost irresistible momentum in that di- book. I’ll arbitrarily focus on three of them activist, Doug Biklen, after a visit to Australia rection because at-home care for a severely for a bit. Donvan and Zucker give space to and an eye-opening meeting with Crossley disabled child seemed unimaginable. If this controversies over “applied behavior analysis” in 1988. The FC movement grew exponen- was so in the minds of a former Supreme (ABA), “facilitated communication” (FC), and tially for a period, but its fortunes quickly Court clerk such as Frank and of two justices the measles, mumps, rubella vaccine (MMR). reversed in October 1993, with the broadcast who were close to him, one has to infer that ABA, a position in the lineage of Pavlov of a PBS documentary about a trial in Maine it was so quite generally. and Skinner, is the view that the cause of a few months before. That trial had sparked Around the time that John Frank was autism doesn’t really matter for purposes an experiment that demonstrated convinc- agonizing over this, Dr. Benjamin Spock of treatment. Therapy should be centered ingly that there was no real communication published the first edition of his soon-to-be- on (in Donovan and Zucker’s paraphrase) from the autistic “witness,” because the facil- famous book on child care. Spock advised “breaking complex skills into small compo- itator was in fact guiding the hands she was against trying to raise a developmentally nents, reinforced by frequent rewards and supposedly just supporting. disabled child in a multi-child home. The occasional punishments.” This is controver- This leads us to MMR. In a press con- parents in such a situation “become too sial on a theoretical level because behavior- ference at London’s Royal Free Hospital on wrapped up in a child who will never develop ism has never been a consensus paradigm in Feb. 26, 1998, Dr. Andrew Wakefield said very far.” After that child’s institutionaliza- psychology. It is controversial on a practical that children he had seen in the previous tion, they “will have more attention to give to level in part because practitioners of ABA year or two had shown autistic behaviors their [other] children who need it.” have brought a baroque imagination to those soon after receiving this vaccine, and he Much of this new book, by John Donvan “occasional punishments.” Donvan and speculated on a causal link between the for- and Caren Zucker, correspondents for ABC Zucker chronicle the experiments of a UCLA mer and the latter. “I do not think the long- News, is a celebration of the countertrends psychologist, O. Ivar Lovaas, who in 1965 term safety trials on MMR are sufficient,” he that developed in the second half of the 20th actually used a cattle prod to administer said. This sent public discussion and debate century, a celebration in the form of a dis- electric shocks to autistic children. ABA has on autism, and much medical research as cussion of the history of autism treatments. never lived down that cattle prod. well, into what turned out to be a dead end. Key developments in this history have been That is unfortunate, because ABA, in a What Donvan and Zucker call “the vaccine driven by parents who resisted the sorts of somewhat kinder and gentler form, and in scare” is only now receding. pressure to which Frank succumbed. Thus, a number of variants, now does good work I won’t elaborate on any of these three Donald Triplett, the young patient to whom in school systems throughout the United subjects, but I recommend that you read the Leo Kanner was specifically referring in that States. It is now a weapon in the hands of book, and the detailed discussions of each of 1942 letter (also “Case 1” in Kanner’s later the “good guys” in the trend toward deinsti- these controversies, for yourselves. Donvan more formal write-up of the newly named tutionalization. It might do even more such and Zucker are thorough, conscientious, and disorder), has lived most of his life outside good work were it not for the heritage of scrupulous in giving credit where credit is of institutions, in the town of Forest, Miss., suspicion left by its early days and Lovaas’ due, and they accord empathy even where among family and friends. Triplett lives there rough edges. some discredit is due. What I will discuss a now as a retiree and a regular presence at The FC controversy arose because little further now is Asperger’s syndrome. the local golf course. autism patients at the dysfunctional end Is it simply another name for the high-func-

June 2016 • THE FEDERAL LAWYER • 73 tioning end of the autism spectrum? Or is it and Asperger’s into close contact. She did be killed. The “Spiegelgrund,” an institution a separate though kindred disorder? so in part because she thought the phrase in Vienna that served as a killing machine “Asperger’s syndrome” (which she coined) in the guise of a children’s hospital, made a Hans Asperger would fall more gently upon the ears of con- practice of dosing children designated for As a simple matter of chronology, Hans cerned parents than the scary term “autism” death with the anti-seizure drug phenobar- Asperger has priority over Kanner as the and in part to bolster her developing idea bital. This would cause a breakdown of lung founder of this particular field within child that autism is a single spectrum or (another function spread out over a period of weeks, psychiatry. Asperger gave his first lecture term she used) a continuum. and the child’s death would be officially on the subject in 1938, and he, like Kanner Asperger himself never endorsed the idea attributed to pneumonia. four years later, used the word “autistic” in that the two disorders are different points Herta had been sick “all spring,” suffering a consciously revisionist sense, distinct from of the same spectrum. The one time that he from encephalitis, an infection-caused its then-established use as a symptom of and Wing met and discussed the matter, he inflammation of the brain, which Asperger schizophrenia. pressed his view that the two syndromes are thought might be causing her severe per- Asperger’s patients, at least superficially, distinct. “We cordially agreed to differ,” Wing sonality disorder, seizure disorder, or, in the seem to have suffered from a different and wrote later. Wing’s view is now the dominant language of the day, “idiocy.” Asperger had far less disabling malady than Kanner’s. Most one, and Asperger’s syndrome is now (usual- a final solution for the problem. He wrote a of the boys Asperger studied (in the words ly) used as a synonym for the high-function- letter about Herta that echoed Nazi ideology: of Donvan and Zucker) “seemed to strive for ing end of the spectrum. “When at home, this child must present an connection with others, usually adults, but unbearable burden on the mother, who has those relationships were filled with anxiety Newton and Leibniz to care for five healthy children. … Perma- and were undermined by the boys’ difficult Asperger’s view is a bit as if the German nent placement at the Spiegelgrund seems personalities, which did not invite warmth co-founder of calculus, Leibniz, had refused absolutely necessary.” and understanding. They failed to form to contest Newton for credit for that The records of the Spiegelgrund include friendships with other children, who teased achievement, claiming instead that the notes from a conversation with Herta’s them mercilessly.” two men had each discovered a somewhat mother weeks later, when she said through These boys made little eye contact, different body of mathematics. But Newton’s tears that she recognized that Herta’s death seldom picked up on nonverbal signals, intellectual heirs had figured out that the would be better than allowing her to live in a and were physically clumsy in a way that differences were a matter of notation only, world where she would experience constant exposed them to teasing and ostracizing. and had given a certain notational style the ridicule and cruelty. No third choice was The physical clumsiness is a point that name “Leibnizian calculus.” imaginable in the Vienna of the time. Herta puzzles me personally. I own up to it in my Aside from the rare publications on the died of “pneumonia” on Sept. 2, 1941. own experience, and it is certainly part of syndrome that now bears his name, what the stereotype of the “nerd” that hovers over else was Hans Asperger doing during the A Reasonable Inference discussions of Asperger’s. But how does it 1940s? As a physician working in Vienna, Nor was Herta unique, except for the clarity relate to the other characteristics in this Austria, through the years of Anschluss and of Asperger’s signature in connection with cluster? How in particular might it follow war, he could not have avoided contact with her name. She was not his only connection from a glitch in the development of a “theory the Nazi medical bureaucracy. In 1992, when with the grisly machinery of the regime. of mind” as it is hypothetically coded into Asperger had been dead for a dozen years Other newly unearthed records show that, neuronal connections? Does physical grace and when the World Health Organization in February 1942, Asperger represented imply an ability to see oneself as a spectator included the syndrome named for him in the city of Vienna on a commission that would see one? its “international classification of diseas- reviewed the health status of 210 children Also consistent with the “nerd” stereo- es,” pressure mounted for the American living in a mental hospital. The commission type, Asperger’s patients often possessed Psychiatric Association (APA) to include this split those 210 into four groups: those still intellectual skills, though these could seem syndrome in its Diagnostic and Statistical too young for compulsory schooling, those to people around them to be oddly focused Manual (DSM). In 1994, the APA included who were of the right age and could benefit and misdirected. One boy that Asperger Asperger’s as one of only two new diagno- from schooling, those too old, and those described was obsessed with drawing geo- ses admitted into the DSM-IV. As a conse- who were of the right age but who were not metrical figures in the sand. In his case, that quence, a number of influential psychiatrists educable. They assigned 35 children to that proved a very functional obsession—that at the time became very curious about final not-educable group. They were to be boy would acquire a Ph.D. in astronomy and Asperger’s own life story. At first they found “dispatched for Jekelius Action.” That is not find a mathematical error in Isaac Newton’s little, and no smoking gun. a very mysterious bit of code: Erwin Jeke- work. Newton? More on him in a moment. lius, the fiancé of Hitler’s younger sister, was Knowledge of Asperger’s work re- Herta Schreiber and others the director of the Spiegelgrund. mained almost entirely confined to the It wasn’t until 2000 that a persistent I suspect that there is a reasonable German-speaking world for decades. It researcher discovered the smoking gun. In inference to be drawn here, which Donvan wasn’t until the late 1970s that Lorna Wing, a 1941, Asperger signed a letter consigning a and Zucker don’t draw, presumably out of psychiatrist affiliated with Maudsley Hospital two-year-old girl named Herta Schreiber to a caution. It is that it is not just coincidental in London, brought the diagnoses of autism facility where, as he surely knew, she would that the patients on whom Asperger made

74 • THE FEDERAL LAWYER • June 2016 his famous observations, those who came to war.” Prakash notes that “executive privi- be the empirical basis for his “syndrome,” Christopher Faille, a member of the leges and immunities, while fitting in more were high functioning. They were high func- Connecticut bar, is the author of Gambling thoroughly regal systems, are best seen tioning because low-functioning children with Borrowed Chips, a heretical account of as foreign to the Constitution’s republican with analogous difficulties would become the Global Financial Crisis of 2007–08. He monarchy.” The term “republican monar- writes regularly for MJINews, a website for subject to Jekelius Action rather than to any chy” is in obvious tension, sounding like an actual and potential investors in the legal prolonged period of clinical observation. The oxymoron. Why would Prakash describe a marijuana industry. case for treating Asperger’s as something system of self-government and separation distinct from autism may have always rested of powers, operating through checks and on a very grim sort of evidentiary selection balances, as a monarchy? bias. In discussing the Constitution’s frame- I believe it is best if we just call the con- work for foreign affairs, Prakash acknowl- dition of such folks, myself likely included, edges that many of the Framers “believed “high functioning autism.” When that gets that the English Constitution ceded too to be too much of a mouthful, just say HFA. much foreign affairs power to the Crown There is no need to memorialize Hans and that some aspects of foreign affairs had Asperger. legislative overtones (such as the war pow- er).” In drafting the Constitution, a number Since Sandy Hook of exceptions “to the grant of executive There is no need to memorialize Adam power ensured that the President would Lanza, either, but I do need to mention him have fewer foreign affairs powers than the in order to conclude this overlong review of English monarch.” Under an 18th-century a very fine, thoughtful, and moving book. English legal principle, the Crown could “do Lanza was the perpetrator of the no wrong.” Americans, as Prakash notes, Sandy Hook Elementary School shooting, “knew from experience that he could.” in December 2012. As part of the normal They would also learn of the capacity of course of events in the United States, after Presidents to do wrong. such a shooting, there was first an outcry Still, Prakash occasionally reintroduces about the ease with which the perpetrator the theme embodied in the book’s title, as obtained the guns, in this case a Bush- when he writes: “The picture that emerg- master XM 15-E2D and a Glock 20SF, with es from the founding era is of an elective which he shot and killed 20 children and six monarch, constitutionally limited in a adults. Imperial from the number of significant ways.” He claims that Then there was a backlash against Beginning: The Constitution “the Constitution’s presidency was redolent that outcry. Because Lanza had once been of monarchy,” while admitting that, “[f]or diagnosed with Asperger’s syndrome, the of the Original Executive many, monarchy implies life tenure, with backlash took the form, in some quarters, By Saikrishna Bangalore Prakash heirs succeeding to the throne. … Monar- of a demand to know why someone with Yale University Press, New Haven, CT, 2015. chy implies singularity; where authority is Lanza’s mental illness was walking about 454 pages, $45. split among many, one is tempted to say free. In other words, part of the response to Reviewed by Louis Fisher that there is no monarch.” What is gained Sandy Hook was a backlash against deinsti- From the title of this book and its early by using the word “monarch”? What evi- tutionalization. chapter headings (including “A King, Under dence justifies its use? Fortunately, the re-institutionalization the Title of President” and “Constituting As Prakash correctly notes, the Senate bandwagon never gathered steam. But it ‘His Highness’ the President”), readers in 1789 debated whether the President may remind some of us that the benefits might think that Saikrishna Bangalore should be styled “His Highness the Presi- of a “spectrum” understanding of autism Prakash is offering the U.S. President dent of the United States of America and aren’t just empirical. They are moral. By as a replica of William Blackstone’s king, Protector of the Rights of the Same.” An postulating a continuum from behavior who had power over all external affairs, alternative proposal was “His Excellency.” that it quite normal though a bit quirky on including the power to declare war, to Prakash does not mention that a House the one end, to that of the nightmare cases make treaties, and to appoint ambassadors. committee strongly opposed these titles, of people who are locked up in their own But the introduction to Imperial from the believing that “it is not proper to annex any skulls and stuck in meaningless repetitive Beginning quickly belies that. “When Pres- style or title to the respective styles or titles behaviors, on the other end, scientists idents exercise the right to decide whether of office expressed in the constitution.” such as Wing remind us that normalcy the United States will wage war,” Prakash Representative Thomas Tucker of South itself is precarious. If we make it a habit of writes, “they act contrary to the original Carolina said that, if Congress intended institutionalizing people simply because Constitution. … The Constitution grants to vote on such titles, it should add “an they share some characteristic with a mass many traditional executive powers to Con- embroidered robe, a princely equipage, and shooter, then few if any of us will be safe.  gress, such as the power to decide to wage finally, a crown and hereditary succession.”

June 2016 • THE FEDERAL LAWYER • 75 He added, “This spirit of imitation, sir, this nized that the Comptroller in the Treasury “Of course there may be duties so peculiarly spirit of mimicry and apery will be the ruin Department did not serve at the pleasure of and specifically committed to the discretion of our country. Instead of giving us dignity the President. Instead, he was recognized as of a particular officer as to raise a ques- in the eye of foreigners, it will expose us to carrying out quasi-judicial work in deciding tion whether the President may overrule be laughed at as apes.” claims against the government and other or revise the officer’s interpretation of his Representative James Madison of Virginia matters. statutory duty in a particular instance.” This joined in the attack on the Senate’s propos- Prakash describes the scope of the is what Chief Justice Marshall in Marbury al, stating that high-sounding titles for the Comptroller’s duties in some detail, but he v. Madison called “a ministerial act,” where president would “diminish the true dignity states that the Comptroller was subject an executive officer’s obligation is not to the and importance of a republic,” warning that to presidential control and that President President but rather to a statutory policy borrowing titles from Europe would be “ser- Washington “directed his comptroller.” What assigned by Congress. The second limit on vile imitation … odious, not to say ridiculous kind of control? By reviewing a comptroller’s the removal power was: “Then there may be also.” And why elevate the President to be decision and revising it? No evidence exists duties of a quasi-judicial character imposed “Protector of the Rights of the [People]”? that Washington ever attempted to do that. on executive officers and members of exec- Certainly that duty rests with Congress Prakash says that Washington directed the utive tribunals whose decisions after hearing as well. Under this onslaught, the Senate Comptroller to examine a particular claim, affect interests of individuals, the discharge agreed not to confer a title on the President. but certainly not that Washington sought to of which the President cannot in a particular Congress wanted no part in recognizing in decide or control the outcome. As Prakash case properly influence or control.” These the President some type of monarchy, how- explains, Washington “might have concluded are decisions by comptrollers, accountants, ever defined or limited. that when a law authorized a specific officer and auditors described by a number of attor- Prakash concedes that, when we read to make a decision, only that officer could neys general. the Constitution today, “the semblance to take action, and that the president ought The theory of the Unitary Executive is monarchy is difficult, almost impossible to not interfere, much less direct the final undercut in a number of passages. With perceive. The text seems wholly republi- decision.” regard to foreign affairs, Prakash states that can in nature.” Article IV guarantees each Prakash mentions that Attorney General the Constitution “left the most consequential state a republican form of government, William Wirt in 1823 advised President executive powers with Congress and made “suggesting that the Constitution likewise James Monroe that he could not revise the other vital powers exercisable only with the created a republic at the federal level, for decisions of accounting officers, but Prakash Senate’s consent.” He acknowledges that who would erect a federal monarchy over a says that this “reading of the Constitution Congress “has created numerous executive series of republics? Moreover, in the same is flawed.” Because the President “has the fiefdoms called ‘independent’ agencies, and article the Constitution speaks of republican power to execute the law, he may execute the Supreme Court has sanctioned their ‘citizens’ rather than regal ‘subjects.’” But any federal law himself.” Even at the time of constitutionality.” Prakash then writes: “by giving the president the Monroe administration, however, Wirt In several places, Prakash states that command of the military, treaty author- said that such a burden would be “an impos- Congress is limited to the powers expressly ity, and powers to appoint to office, and sibility.” It was not the duty of the President granted to it. Because Article I begins with dispense mercy, the Constitution guaranteed to audit public accounts. In one opinion, “All legislative Powers herein granted shall comparisons to European monarchs.” This Wirt told Monroe that any interference by be vested in a Congress,” this clause “evi- description conflicts with Prakash’s earlier the President in the settlement of accounts dently does not grant Congress any power recognition that the Constitution vests the would “be illegal.” Subsequent attorneys not enumerated. …” Similarly, an “obvious” power to go to war in Congress, not in the general provided the same advice to Presi- reading of the Constitution leads one to President, and overlooks that the President’s dents. For example, Attorney General John conclude that Congress “is limited to its authority over treaties and appointments is Crittenden advised President Millard Fill- enumerated powers.” Yet all three branches, shared with the Senate. Prakash concludes more in 1850 that a decision by the Comp- from the beginning, had access to a combi- Chapter 1 with these words: “Of George W. troller on a claim was “final and conclusive” nation of enumerated and implied powers. Bush, it was said that he acted as a monarch. on all branches of the executive government. The latter were those that could be inferred It is said of Barack H. Obama. And it will be Presidents had no business getting involved: from enumerated powers. Because it is the said of future chief executives.” But partisan “the settlement & adjustment of accounts duty of the President to see that the laws are attacks do not add monarchical qualities to have been left to accountants.” faithfully carried out, if a department head the office of the President. As Prakash points out, the scope of the is unable or unwilling to carry out a law, the Further into the book, Prakash describes President’s removal power reached the President has an implied power to remove the model of the “Unitary Executive as a Supreme Court in the 1926 case of Myers that person. Because the “judicial Power” of ‘Foetus of a Monarchy.’” Proponents of a v. United States. As he says, the Court the United States is vested in the Supreme “Unitary Executive” insist that all constitu- “embraced the Madisonian view” of an Court and inferior courts, courts may need tional powers to execute the law are vested implied power of the President to remove to reach constitutional questions through the in the President, but that has never been department heads. That is largely true, but power of judicial review, even though that the case. In 1789, when the First Congress Prakash does not explain that the Court spe- is not expressly stated. And, because the agreed that the President had authority to cifically recognized two significant limits to legislative power is placed in Congress, in remove department heads, it also recog- the President’s removal power. The first was: order to exercise that power in an informed

76 • THE FEDERAL LAWYER • June 2016 manner Congress has the implied power to or groundbreaking” as the top three. Thomas investigate, issue subpoenas, and hold in Jefferson, Andrew Jackson, Theodore Roo- contempt those who fail to testify or submit sevelt, Woodrow Wilson, and Harry Truman requested documents. did not face “the nation-encumbering calam- According to Prakash, the President ities or crises faced by Washington, Lincoln, “may forbid executives from investigating or FDR. …” Nevertheless, these second-tier and prosecuting him.” Yet Nixon could not greats “all stood at critical junctures in the stop the prosecutions in Watergate that nation’s story” and, “denied the urgency and drove him from office. Independent Counsels pressure for consequential policy changes, not only investigated Clinton while he was had to do more to create their own constitu- in office but made it clear that they would encies.” Miller finds Eisenhower underrated pursue him after he left office, leading him to but not great. Concerning the post-Eisen- make a financial settlement with Paula Jones hower Presidents, Miller writes: and admit that he had committed perjury. Because the Iran-Contra investigation had Anyone watching the presidential the capacity to impeach Reagan, he was the movie over the past half century first President to completely waive exec- can be both inspired and depressed, utive privilege. Prakash places this limita- but never bored. Since Eisenhower tion on Presidents: “Nor can the president retired to his farm in Pennsylvania, finance and supply the militia by using his the presidency has been one wild own wealth or that of private donors.” The and bumpy ride. It has emerged as Reagan administration, however, sought and part soap opera, part psycho drama, received funds from foreign governments and part deadly serious business. and private citizens to assist the Contras, The story line has been advanced by resulting in the prosecution and conviction The End of Greatness: some extraordinary characters: first of several people. Why America Can’t Have the drama of Kennedy and Camelot Prakash provides a closely researched and another martyred president; next analysis of various presidential duties, (and Doesn’t Want) scene, the tragedy and travails of the focusing primarily on the early decades. Another Great President truly larger-than-life Lyndon Johnson; His work is thoroughly documented by next up, Richard Nixon, perhaps the more than 2,000 notes referring to original By Aaron David Miller most fascinating and complex char- and secondary sources. Much of the book, Palgrave MacMillan, New York, NY, 2014. acter in the history of the presidency, however, is devoted to analyzing a range of 280 pages, $28.99. and the Watergate scandal that did so presidential duties that are not related to the Reviewed by John C. Holmes much to damage it; followed by the title’s theme about the President serving as Early in The End of Greatness, Aaron David short sagas of Gerald Ford, a good some type of monarch.  Miller names America’s greatest Presidents, man whose basic goodness, decen- in chronological order, as “Washington, Jef- cy, and resulting decision to pardon ferson, Jackson, Lincoln, Teddy Roosevelt, his predecessor probably made his Louis Fisher is scholar in residence at the Wilson, FDR, and Truman.” Not surprisingly, reelection almost impossible, and Constitution Project and visiting professor at Miller finds the three greatest among those of course Jimmy Carter, one of our the William & Mary Law School. From 1970 to be George Washington, Abraham Lincoln, smartest presidents, who hated to 2010, he served at the Library of Congress and Franklin D. Roosevelt. Washington, by politics and did not understand how as a senior specialist with the Congressional abiding by and strengthening the impor- to use the presidency; and then, enter Research Service and specialist in consti- tance of the Constitution, as well as by stage right, a president literally from tutional law at the Law Library. He is the author of 24 books, including The Law of the refusing to run for a third term that he could Hollywood, who did. Ronald Reagan, Executive Branch: Presidential Power (Oxford easily have won, stands tall among the top though not a great president like our University Press, 2014). For more informa- three. Lincoln, seemingly ill-fitted for the other top performers, was great at tion, see http://loufisher.org. office and whose election led to the horren- being president at a time when the dously costly Civil War, just before he died country needed it. The drama then began the healing process to bind the nation winds down with the experienced together. Roosevelt, who saw the nation and, by his own admission, vision- through the Great Depression and led it to less George H. W. Bush, and then economic recovery, presided over the most ramps up again big-time at home tragic war in history. and abroad for another sixteen years The other Presidents among the greatest of roller coaster rides: eight under that Miller names—those he calls the “close Bill Clinton, compelling rascal and but no cigar” crowd—left legacies that were brilliant politician, who presided over “impressive, but not nearly as transformative continued on page 88

June 2016 • THE FEDERAL LAWYER • 77 North Central Florida Chapter: Above left: Joshua Jacobson, second year law student at the University of Florida Levin College of Law, moderated the well-attended Judicial Clerkship Panel. Above right: Tampa Bay Chapter: In Spring 2016, the Tampa Bay Chapter hosted two Chambers Lunches with U.S. District Judge Virginia Covington and U.S. District Judge Elizabeth Kovachevich. The Chambers Lunch is a small-group lunch intended to facilitate unique and meaningful interaction between judges and members of the Tampa Bay Chapter. Judges gave short presentations about their time on the bench and took questions from participants. Photos taken by Julian David Pinilla, University of Florida Fredric G. Levin College of Law board of directors, moderated the discussion about federal judicial Tampa Bay Chapter clerkships. Marie Moyle, also a UF Law student and FBA Chapter Chambers Lunch representative, helped coordinate this successful event. On Feb. 19, the Federal Bar Association’s Tampa Bay Chapter hosted The panel included U.S. Circuit Judge Richard Clifton, Ninth its first Chambers Lunch with Middle District of Florida Judge Virgin- Circuit Court of Appeals; U.S. Magistrate Judge Gary Jones, North- ia Covington. The Chambers Lunch is a small-group lunch intended ern District of Florida, Gainesville Division; U.S. Magistrate Judge to facilitate unique and meaningful interaction between the judge Philip Lammens, Middle District of Florida, Ocala Division; Michael and members of the Tampa Bay Chapter. Judge Covington was eager Dupée, judicial law clerk to Senior U.S. District Judge Maurice to discuss her previous work experience with the 10 attendees. She Paul, Northern District of Florida, Gainesville Division; and Erin is particularly proud of her work as chief of the Asset Forfeiture Sales, judicial law clerk to Magistrate Judge Jones. Approximately Section in the Criminal Division of the U.S. Attorney’s Office for 80 students attended the panel discussion along with representa- the Middle District of Florida. Judge Covington also spoke with the tives of the North Central Florida Chapter and the University of attendees about her efforts to ensure efficiency in issuing orders and Florida College of Law. decisions, describing the courtroom technology available to the judge The panelists were informative and insightful, responding to and her staff to track and manage her caseload. Judge Covington questions from the moderator and audience and explaining their ended the lunch with a tour of her chambers and courtroom. This respective experiences with federal judicial clerkships in both the Chambers Lunch is the first of an anticipated series of Chambers federal appellate and trial courts. A lunch for students followed, Lunches in 2016.  provided by the FBA; sub sandwiches disappeared in quick order. An audio recording of the Federal Judicial Clerkship Panel pro- gram is available by contacting Elliott Welker, assistant to Chapter President Robert Griscti, at [email protected]. 

Book Reviews continued from page 77

great economic times and balanced divided political viewpoints and the vicious bright, yet both have been rated failures as the budget but undermined his own combat within the branches of government President. Truman, who is one of Miller’s presidency with Monica Lewinsky; as well as within the public at large, achieving near-greats, was the only modern President and eight under George W. Bush, who a high enough level of cooperation to move without a college degree. took the country into two unwinnable a presidential agenda forward and gaining it The End of Greatness is well-re- wars and presided over one of the eventual approval will be problematic. Miller searched, easy to read, and, although not worst economic crises in American concludes that we should not seek a great containing much that is new, is stimulating history but kept America attack-free President but should be content with one and provocative.  after 9/11. who will not cause major disruptions. Seeking a great President would also be John C. Holmes was an administrative Arriving at the subject named in the fruitless because it has seldom been fore- law judge with the U.S. Department of La- title of the book, Miller explains why no ordained which Presidents would be great. bor for more than 25 years, and he retired future President will likely be able to obtain James Buchanan had one of the best résumés as chief ALJ at the Department of Interior in 2004. He currently works part time as greatness. He or she will be graded daily by and became one of the worst Presidents; his an arbitrator and consultant; enjoys golf, an ever more critical and active media and successor, Lincoln, was the opposite. By all travel, and bridge; and can be reached at closely followed by an educated and observ- accounts Herbert Hoover was an exceptional [email protected]. ing populace. Moreover, given the fiercely businessman and Jimmy Carter was unusually

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