Notice & Comment

Democracy’s Chief Executive and the Separation of Powers

*This is the eighth 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.

For the first decade of my academic career, I shared an office wall with Peter Shane. As I have reminisced elsewhere, Peter’s mentorship (and friendship) has been one of the greatest blessings of my academic career to date. From our first interactions (and before that when I read his scholarship), Professor Shane has had an unwavering vision of presidential power—one that does not change when there has been a change in which party controls the White House. There is a lot to admire about a scholar who maintains the same view, even when a different view at a particular time may better advance the scholar’s personal policy preferences.

In his first book, Madison’s Nightmare, Professor Shane set forth much of his vision for the American presidency. It is an anti-formalist (and anti-unitary-executive) vision where both law and norms constrain presidential power and federal agencies exercise their statutory authority and fulfill their congressional mandates insulated from excessive presidentialism. Three presidents later, Professor Shane returns to the subject in his new book, Democracy’s Chief Executive. Like his first book, this book is a must-read for scholars of administrative law, public administration, and separation of powers.

The bulk of Democracy’s Chief Executive is a more extended critique of “aggressive presidentialism”—or the “entitled executive”—that has been a feature of the American presidency for (at least) the last four decades. His targets are the unitary executive theory (Chapter 1), the chief prosecutor myth (Chapter 2), the “deep state” attacks on the career civil service (Chapter 3), and originalist interpretations of separation of powers (Chapter 4). These chapters have been covered extensively in other contributions to the symposium, so I won’t explore them more here.

In the final three chapters, Professor Shane sets forth his affirmative vision for the American presidency, as Democracy’s Chief Executive. He dubs this vision “democratic constitutionalism,” which implicates a number of key values when it comes to interpreting the Constitution and thus understanding the scope of presidential power (p. 161):

  • “preference for more inclusive democratic deliberation both within and among the branches of government”;
  • “[o]rdinarily, the more transparent, the better”;
  • “the rule of law, which implies preeminent concerns for accountability and reasoned decision-making”;
  • respect for “long-standing patterns of interbranch interaction in deciding questions regarding the scope of presidential and congressional power”; and
  • presumption of respect to “[a]ccomodations reached by elected representatives of ‘the people.'”

With these values in mind, Professor Shane argues (p. 171) that, “within extremely broad limits, it should be up to Congress to decide the scope of authority properly handed to administrative bodies to deal with regulatory issues.” And federal agencies, which he views as having a “democratic pedigree . . . at least as strong as that of Congress itself,” must engage in transparent, reasoned decision-making. Federal agencies, Professor Shane argues (p. 171), “must explain themselves with sufficient clarity to persuade the public and often a reviewing court that they understand the goals they are pursuing, that they grasp the state of the world and how it falls short of Congress’s goals, that their proposed initiatives conform to the relevant statutory criteria for action, and that their initiatives can reasonably be expected to promote the relevant goals, given the facts as currently known.”

In the final two chapters of Democracy’s Chief Executive, Professor Shane advances numerous recommendations for how to transition from the entitled executive to Democracy’s Chief Executive. As a great book typically does, Professor Shane’s affirmative vision and accompanying recommendations raise a number of important questions for further exploration. I want to flag three sets of them here.

Congress and Democratic Legitimacy

Democracy’s Chief Executive seems to place great weight on Jerry Mashaw’s defense of the democratic legitimacy of the administrative state on the basis of reason-giving. In Professor Mashaw’s view (borrowing from my review of Mashaw’s important book), there are two types of democratic legitimacy: aggregative or electoral accountability and deliberative accountability. Professor Mashaw argues that American democracy melds these two distinct visions. Legislative action can easily be understood as advancing aggregative or electoral accountability. When it comes to deliberative democracy, however, Professor Mashaw argues that the legislative process is deficient. After all, Congress is not required by law to provide any reasons at all. Thus, if we care about both electoral and deliberative democratic accountability, “reasoned administration completes and enhances an attractive vision of democratic government” (p. 14).

For those of us who are more skeptical of bureaucratic governance than Professor Mashaw, this disaggregation is both helpful and frustrating. Helpful, because viewing these two democratic values separately assists in diagnosing the current health of democratic governance in the United States. Frustrating, because Professor Mashaw’s efforts seem to both underestimate Congress’s role and overestimate bureaucracy’s in legitimating democracy. The Constitution may not require Congress to give reasons, and legislation seldom enacts a statement of purpose. But members of Congress face ample incentives to offer reasons for their decisions—in committee meetings and reports, on the House or Senate floor, at press conferences, through opinion pieces and other publications, and along the campaign trail. And the legislative process itself is deliberative—or at least it is designed to be. In other words, Congress, when healthy, advances both democracy-legitimizing functions.

As Professors Mashaw and Shane both seem to recognize, the administrative state is much better at advancing deliberative accountability than electoral or aggregative accountability. As the final chapters in Democracy’s Chief Executive demonstrate, Professor Shane views Congress’s role to be critical in democratic constitutionalism to advance aggregative accountability, and he recommends various reforms to revive Congress’s interactions with the administrative state. I welcome this congressional focus, and would recommend even more aggressive actions to encourage Congress to more regularly revisit the statutes that govern federal agencies and to oversee, constrain, and ratify the major regulatory actions federal agencies pursue. (To be fair, Congress still can and does do a lot to oversee the administrative state beyond regular legislation, especially when it comes to congressional oversight and appropriations.)

That said, I am also not all confident that Congress will shift gears anytime soon. For those of us concerned about electoral democratic accountability, Congress’s broad delegation of major value judgments to federal agencies can be troubling. On this front, we find at least some comfort in a strong version of presidential administration, in which the president has robust control of (or at least strong influence over) the administrative state.

Professor Shane’s vision of the presidency, of course, does not embrace a strong version of presidential administration, outside of the express provisions in the Constitution and the president’s inter-agency coordinating role. In a world with a vibrant, active Congress involved in regulatory governance, perhaps we could achieve electoral or aggregative accountability. In the world we live in, Professor Shane’s vision of democratic constitutionalism must rely much more heavily on deliberative accountability. For some of us, deliberative accountability, without electoral or aggregative accountability, is not sufficient to achieve healthy democratic accountability.

And even if it were sufficient, visions of deliberative accountability in administrative law have always struck my as highly romanticized. Notice-and-comment rulemaking is not the direct-democracy town hall of which some scholars seem to dream. Nor, to be sure, is it just a highly technical endeavor; procedural politicking abounds, as Rachel Potter has documented. Perhaps more importantly, the vast majority of agency actions (adjudication, orders, enforcement, subregulatory guidance, etc.) are even less deliberative than rulemaking. So many of the headline-grabbing regulatory actions of the last three presidents did not involve notice and comment or other deliberative democracy-enhancing mechanisms: DACA/DAPA, DACA rescission, the attempt to add a citizenship question to the census, the CDC eviction moratorium, the OSHA COVID vaccine-or-test requirement for large employers, and the student loan cancellation program—just to name a few.

In other words, even if Professor Shane is correct that strong presidential administration is not required as a constitutional matter, is it not perhaps a second-best solution to ensure democratic accountability in our current era of congressional gridlock and polarization?

Political Leadership at Agencies

Absent an aggressive president and a legislatively active Congress, democratic accountability—especially in the aggregative or electoral sense—seems to rely on political leadership at federal agencies. After all, agency heads are appointed by the president and confirmed by the Senate, and under Professor Shane’s view, Congress can decide how much control both the president (e.g., through removal power) and Congress (e.g., through statutory delegations of authority, appropriations, and oversight) can have to hold political leadership accountable for their agency’s regulatory activities.

Democracy’s Chief Executive pays a lot of attention to agency structure and the role of the career civil service as well as to how courts should respect legislative choices about how much power the president has over federal agencies and their leaders. But Professor Shane’s vision of democratic constitutionalism also raises fascinating questions about who should be the political leaders of federal agencies.

Should those leaders represent the median member of the president’s party? Or the median American on the regulatory issues over which that leader will direct federal government action? Or is it a good thing that the heads of certain agencies share the more outlier views of the party in power when it comes to the regulatory subject matter (e.g., antitrust/competition, environment, financial services, immigration, trade, etc.)?

Should those politically appointed agency heads advance the White House’s agenda on their own? Should they strive to advance the enacting Congress’s preferences? Or should their policy compass be the preferences of the current Congress? One may suggest they should just faithfully and technocratically implement the statutes as written, but that’s a very idealistic view of the administrative state. Without a regular reauthorization practice in Congress, federal agencies are forced to confront new problems with old and broad statutory mandates. Policy judgment is inescapable.

These are fun normative questions. But they are also interesting as a descriptive (or predictive) matter. If Professor Shane’s vision of the presidency becomes reality, the Senate and the president would no doubt act differently in the appointment process. The game theory of that appointment process would be a fascinating one to spatially model.

Major Questions Doctrine

While reading the book, the Supreme Court’s new major questions doctrine was regularly on my mind, despite apparently not being addressed in the book. To be fair, Professor Shane wrote the book before the new major questions doctrine became a thing, so the book’s lack of attention to it is no surprise. But as Dan Farber explores in his symposium contribution, the arguments in Democracy’s Chief Executive “point toward a reason to require clear delegations from Congress on matters that are critically important—not so much as a way of preventing Congress from giving away too much power as a way to prevent Presidents from snatching powers they were not given.”

I couldn’t agree more. And it would be interesting to see how Professor Shane would view the new major questions doctrine as a check on an entitled executive. In prior work, he has expressed skepticism about judicial deference for certain White House interpretations of statutes that agencies administer, so perhaps that is a starting point. On the other hand, one who has read Democracy’s Chief Executive would surmise that Professor Shane would not be a fan of the Supreme Court creating the major questions doctrine itself. He would likely argue that these sorts of checks on bureaucratic action should be made by the political branches (if at all).

But would Professor Shane favor Congress codifying a major questions doctrine in the Administrative Procedure Act? I wouldn’t be surprised if he were willing to embrace some version of that legislative regime, especially if Congress included a fast-track mechanism to review and revise judicial invalidations of agency regulations on major questions doctrine grounds (similar to what I suggest here).

Putting aside legislative and judicial action, would Professor Shane’s vision of democratic constitutionalism require agencies to internalize a major questions doctrine? In other words, when the president or political leadership at the agency asked the agency to pursue a very aggressive interpretation of the agency’s governing statute—one that the agency is quite confident neither the enacting Congress nor the current Congress would support—should the agency resist the political request and wait on further instructions from Congress? My guess is that Professor Shane would at least embrace some version of “administrative fidelity” in those contexts.

Similarly, if the president is properly serving as Democracy’s Chief Executive, should the president resist the temptation to advance tenuous interpretations of statutory powers (of either the president or an agency) to advance a policy agenda not supported by existing law? Professor Shane would say yes. This temptation is perhaps at its greatest during a national emergencies, and Professor Shane suggests (pp. 211-212) that Congress should revisit the president’s broad statutory authority to regulate when the president declares a national emergency. But should the president take the additional step of discouraging presidential appointees heading federal agencies from doing the same?

Put differently, as Democracy’s Chief Executive, Professor Shane powerfully argues that the president (and courts) should abandon aggressive presidentialism, leaving federal agencies to exercise their statutory authority and fulfill their congressional mandates insulated from excessive presidential control and influence. But should the president (and courts) also encourage a culture of democratic constitutionalism at federal agencies—through the president’s choice of political appointees, inter-agency coordination, legislative agenda, and public messaging (and judicial review)?

These are just a few of the fascinating questions Democracy’s Chief Executive raises for future discussion and research. I look forward to seeing some of these issues and others further developed in the rest of the contributions to this symposium and in the years to come.

Christopher J. Walker is a Professor of Law at the University of Michigan.

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