*This is the sixth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
In Democracy’s Chief Executive, Peter Shane provides powerful critiques of originalism and unitary executive theory, and he recognizes that this interpretive methodology and substantive understanding of executive power are key planks in the conservative legal movement’s political efforts to give complete control over administration to one person—the President—and to pretend that today’s Americans have no legitimate choice in this profoundly undemocratic institutional arrangement. Shane shows that originalists are often wrong about the Constitution’s original public meaning and argues that their interpretive methodology is threatening to democracy (or, as he puts it at one point, “insane”) even if it could be done well. He contends that open constitutional questions about presidential power and the separation of powers should instead be resolved metademocratically, by resolving vagueness, ambiguities, and unforeseen problems in ways that will promote rather than undermine democracy.
In Shane’s vision, while semantic meaning and historical practice are relevant to the inquiry, constitutional interpretation in close cases should be understood as an exercise in institutional design, and courts should be striving to promote principles of deliberative democracy. Shane provides detailed guidance regarding what this means for a host of constitutional questions and suggests numerous ways in which the federal judiciary, Congress, and the Executive Branch could reinvigorate democracy and establish (or reestablish) a presidency that aims to promote the common good rather than the President’s personal interests or those of his loyalists and political base. Shane’s preferred understanding of the Constitution and proposed institutional reforms are a veritable wish list for the progressive regulatory movement, and he ultimately suggests that a(nother) hegemonic shift in America’s political and legal culture will be required for this movement to be successful.
I completely agree with all of this (and appreciate Shane for saying it so well), but I would frame the competing visions of democracy on offer in even stronger, more dichotomous terms. It’s not just aggressive presidentialism versus democracy’s chief executive, but rather authoritarian populism versus agonistic republicanism. As Anya Bernstein and I have argued in recent work, authoritarian populism imagines a single leader embodying the will of a unified people with little use for the institutional mediation of divergent views. This view, prominent in contemporary politics, has also insinuated itself in law through the rhetoric of judicial populism, which disparages contestation and the institutions that convene it. Judicial populist rhetoric is deeply engrained in originalism and unitary executive theory, which exhibit the same anti-pluralist, anti-institutional, and Manichean traits as its political counterpart. And the associated form of regulatory jurisprudence, which transfers power from the governmental institutions most responsive to pluralistic contestation—Congress and agencies—to those least subject to it—the President and courts, contrasts sharply with a vision that places multilateral deliberation and debate among different social groups at the foundation of democracy. An agonistic republican approach reflects a convergence among deliberative democrats, republican theorists, and agonism supporters, and it recognizes that administrative agencies provide the primary site in today’s American government for pluralistic contestation among disparate policy views. In other words, agencies are our most democratic institutions. We should therefore be seeking to facilitate multilateral deliberation and debate within agencies—to improve and further democratize administration—rather than concentrating executive power in one person or deconstructing the regulatory state.
Shane’s story vividly illuminates our argument, and much of it already sings or could easily be reframed in our terms. For example, Shane clearly recognizes the authoritarian tendencies of aggressive presidentialism and how originalism and unitary executive theory are incompatible with pluralistic democracy. He draws upon deliberative democracy to emphasize the value of treating competing interests and views with equal respect and providing meaningful opportunities for public participation. While his goal is to facilitate legitimate collective decisions that will comport with the rule of law and promote the public good, Shane focuses primarily on the procedural dimensions of deliberative democracy—transparency, inclusive dialogue, public-regarding reasons, etc.
This ostensibly neutral procedural focus potentially leaves Shane vulnerable to critiques from those who are not with the program that his preferred constitutional doctrines and proposed policy reforms would all advance the progressive regulatory movement’s vision and could therefore appear political (just like the program of the conservative legal movement he is criticizing). But Shane’s preferred constitutional doctrines and proposed policy reforms are also based on a substantive conception of democracy, which he, for the most part, leaves implicit. By drawing out the substantive dimensions of agonistic republicanism—and especially deliberative democracy’s efforts to facilitate the most justifiable decisions on the merits, and republican theory’s commitment to preventing the possibility of private or public domination—we can see how and why Shane’s preferred constitutional doctrines and proposed policy reforms (and those of the progressive regulatory movement more generally) would reinvigorate and promote democracy, as opposed to simply imposing the left’s naked political preferences on everyone else (as conservatives are wont to do). Most regulatory programs are designed to protect otherwise vulnerable individuals or groups—such as consumers, workers, or inhabitants of the environment—from the possibility of domination by powerful private interests. Faithfully implementing those programs to the best of our collective ability, while treating the resulting decisions as provisional and subject to ongoing contestation and potential revision, affirmatively advances democracy from an agonistic republican perspective.
While I fully share what I take to be Shane’s substantive democratic vision, I’m not sure that he has precisely captured or fully developed the most promising procedural mechanisms for achieving it. Congress and the federal courts seem like nonstarters given the current composition of those bodies, structural limits on legislative action, and existing levels of political polarization. While Shane certainly recognizes these problems, he also seems unduly optimistic regarding the willingness and ability of the three branches to check one another (and especially the potential efficacy and democratic character of legislative oversight and statutory reform). In short, I worry that Shane has too much confidence in the contemporary Congress. In my view, the most promising avenue for pushing back against authoritarian populism and promoting agonistic republicanism is internal reforms of the Executive Branch. Shane embraces such reforms as part of his overall program for instantiating democracy’s chief executive, but he only devotes one paragraph by my count to the need for increased efforts to facilitate meaningful and balanced public engagement with regulation.
Michael Sant’Ambrogio and I conducted an extensive study of Public Engagement with Agency Rulemaking for the Administrative Conference of the United States (ACUS) in 2018. We found that federal agencies undertake significant efforts to solicit feedback on potential regulations from interested members of the public, but that such efforts were ad hoc and unsystematic. We therefore proposed a variety of best practices that would help make those efforts more consistent and effective. Our related article, Democratizing Rule Development, suggests focusing those efforts on the agenda setting and rule development stages of rulemaking when informed public feedback tends to be most useful. Because securing valuable information, views, and arguments from otherwise missing stakeholders who do not typically participate in the regulatory process poses some difficult challenges and can be cost-intensive, we set forth a host of best practices that agencies could adopt to make the most of the available tools and knowledge in this area. Not only would enhanced public participation in rulemaking help to fulfill “the promised opportunity for individual political engagement” and “the promise of equal respect for the interests of all citizens in the course of collective decision making” that Shane identifies as crucial to an authentically democratic process, but it would also provide new levers of countervailing power that could help to facilitate the most justifiable regulatory decisions on the merits and limit the possibility of private domination by the politically strong of the politically weak. In other words, enhanced public engagement with rulemaking could promote the full range of agonistic republican values, and thus also advance Shane’s substantive democratic vision.
It is true, as Shane recognizes, that internal Executive Branch reforms of this nature could potentially be undone by a subsequent, authoritarian presidential administration. But the creation of significant new opportunities for the public to participate in regulatory governance could also help to build a culture of “civic administration” that could prove remarkably resilient in practice. Originalism and unitary executive theory were, after all, initially viewed as “off the wall” before the conservative legal movement successfully transformed the dominant legal culture (and packed the federal courts with movement conservatives). The establishment of enhanced opportunities for meaningful and balanced public engagement with regulation should be the central plank of the progressive regulatory movement’s efforts to establish a new legal culture based on principles of agonistic republicanism. This may ultimately be the best way to achieve Peter Shane’s truly compelling vision. It would also help if we could somehow make Democracy’s Chief Executive required reading for all the American people.
Glen Staszewski is Professor of Law & The A.J. Thomas Faculty Scholar at Michigan State University.