The Regulatory Tribune: The President and Democratic Administration

• In Event: Constitutions and Administration in Democratic Theory

Abstract

When it comes to grappling with the role of the American presidency within administration, scholarship presents us with two unpalatable choices. First, we can reconcile ourselves to a plebiscitary, imperial “unitary” president. As “an immediate and direct representative of the people,” he has every democratic right to shape agency agendas and agency values. The second choice presented cuts the President out of the regulatory picture entirely. Here, the choice is to extol administrative agencies as the sole delegates of Congress’s policymaking power. As steadfast emissaries of legislative intent, they should dedicate themselves to rational, deliberative decision-making. If he took his proper place, the President would assume the role of “mere clerkship.” This line of thought offers a capacious menu of reasons why the unitary, plebiscitary presidency is bad. But it doesn’t offer any alternative other than pretending that he doesn’t, or shouldn’t, exist at all.
The bitter taste of these two choices is familiar. The first risks a Schmittian nightmare, an executive that rules by nontransparent diktat. The second choice, sounding in a Whiggish register, risks a juristocratic nightmare as courts and technocrats camouflage the politics of their decisions behind the anodyne language of legal reasoning, expertise, and science. They evade whatever authority presidential elections lend to the nation’s chief officer and betray voters’ expectations that their votes should mean something. At the very least, when we pretend that the President doesn’t have a hand in forming agency policy, we allow his influence to grow under the fertile conditions of secrecy and inattention.
As legal scholars have well documented, neither the Administrative Procedure Act nor Constitutional text points to a clear choice between these two alternatives. Within the APA, the President is conspicuously absent. Meanwhile, Article II of the U.S. Constitution, imposing on the President an ill-defined duty to a“faithfully execute” the laws, has nothing to say about what kind of executions are sufficiently faithful and what, exactly, the President can do about it besides require written reports and fire officials. Nor does it offer insight into what “execution” actually means under conditions of legal indeterminacy.
The silence is understandable. The President’s role in politics is itself indeterminate and subject to robust contestation. For example, he is sometimes understood as a lawmaker carrying his own mandate representing will of people — and sometimes he’s seen to serve as a legal functionary that any reasonably competent and honest bureaucrat might fill. Some believe the President should reflect the will of the majority. Others look to him to protect a minority excluded (by law or distance) from the halls of power. Some think the President should act for the people; others think he should act like the people. Some believe that because the President enjoys a nation-wide constituency, he is a better representative than Congress because Congress is beholden to particular interests and prone to corruption. Others consider Congress’ democratic legitimacy as superior to that of the President because it enjoys a “closer” relationship to voting constituents. Given our deeply contested and contestable visions of the presidency through history, is it really any surprise that the law reflects our uncertainty?
Since the law doesn’t provide any answers, legal scholars seeking to define a role for the presidency within the administrative state must conscript extra-legal sources. For example, formalists import a strict separation-of-powers theory — a theory not written into and unsupported by constitutional text or history — to justify a unitary executive. Functionalists, all the while insisting that the three branches “share the reigns of control,” invite us to reproduce bicameralism, presentment and judicial review within administrative decision-making. But they fail to specify the role that is to be played by the President in particular.
In this paper, I agree that the law cannot, on its own, guide us between these two choices. The problem is that these theories can only ever imagine the President as playing a playing a populist role in governance. They just disagree on whether this is a thing to celebrate or to lament.
But what happens when we set forth a different role for the presidency? What if the President can represent us in a way that avoids the pitfalls of populism and its dangerous logic? Can a president be powerful, effective, and democratically legitimate political representative without also being a strongman? I think that maybe there is. Namely, those presidents who have most precisely followed a model of democratic trustee representation have been those who were neither tyrants nor pen pushers, but leaders who expanded democracy and the rights ascribed to all citizens equally.

Author

• Katharine Jackson, University of Cincinnati