Of Presidents, Democracy, and Congress, by Gillian Metzger
*This is the ninth 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.
Put one good thing down for the Trump presidency: It inspired Peter Shane to take up the pen to detail the fallacies of unitary executive theory and other forms of aggressive presidentialism. In Democracy’s Chief Executive, Shane provides a clear and powerful account for why unitary executive theory—the claim that the president can control the entire federal bureaucracy, which Shane notes usually includes the propositions that the president can fire any subordinate executive branch officer at will and determine how any discretion delegated to the executive branch is exercised—fails. As he explains, such propositions are at odds with the Constitution’s text and structure, unsupported by original constitutional understandings as well as historical practice, and a bad idea from a normative and practical perspective.
The most intriguing part of this book is Shane’s effort to sketch an alternative constitutional vision of the presidency that focuses on democracy. Shane contends that the question that should guide efforts to “resolve constitutional ambiguities about the powers of the presidency” is “[w]hat would most strengthen both the electoral and deliberative sides of America’s hybrid democracy?” (142) He justifies this focus on democracy as necessary to ensure the government has legitimacy, and also invokes historical accounts of the importance of democratic deliberation to the Framers. But his emphasis on strengthening democracy is avowedly non-originalist and rests more on contemporary threats that make preservation of our constitutional democracy an urgent priority.
Although Shane’s account of democracy remains fairly general, he insists that assigning democracy paramount importance reinforces rejection of the unitary executive, because an executive branch focused entirely on the policy predilections of a single individual . . . is likely to be an executive branch in which policy dialogue is stunted and relatively nontransparent.” (167). And for Shane, preserving and expanding “opportunities for genuine political dialogue both within and without government” is a critical prerequisite for democracy to flourish. Another requirement is ensuring the rule of law, in the form of an executive branch committed to acting in accordance with governing legal requirements and based on publicly justified reasons. A regime where decisions rest on presidential whim and are made behind closed doors would not qualify.
In so arguing, Shane takes direct aim at the prime justification for the unitary executive today: that an elected president’s unconstrained control of the federal bureaucracy is essential to preserve political accountability and democratic self-government. Or as Chief Justice Roberts put the point, in granting the president nearly unlimited removal authority over executive branch officers: “[T]he Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch” Seila Law v. CFPB, 140 S.Ct. 2183, 2203 (2020).
This justification for the unitary executive is deeply flawed. Put aside the fact that the Constitution doesn’t make the president directly accountable to the people at all, choosing instead to employ the electoral college for this purpose and allow state legislatures to determine how electors are chosen. The suggestion that the Framers sought to select the chief executive on the basis of popularity, rather than “good character and public achievement,” is, as Shane puts it, “entirely anachronistic.” (203) Today, presidential elections generate extensive national attention, and the greater ideological cohesion of national political parties may well make them a better barometer of popular policy views than in the past. Still, Shane is also right that a once-every-four-years presidential election is a slim basis for according the myriad decisions made by the executive branch a meaningful democratic imprimatur. Equally implausible is viewing the Framers or the Constitution as granting the president greater democratic stature than the House of Representatives, notwithstanding the House’s much more immediate tie (and actual direct electoral connection) to voters. Indeed, a striking feature of the democracy defense of the unitary executive is the extent to which Congress is simply absent from the picture.
Yet Shane’s vision of a democratic chief executive also has its omissions. Perhaps most notably missing is emphasis on effective government. Ensuring that elections translate into implemented policy is also essential for preserving democracy. As FDR’s Brownlow Commission famously stated, as part of its report on how to reorganize the executive branch: “By democracy we mean getting things done that we, the American people, want done in the general interest. Without results we know that democracy means nothing and ceases to be alive in the minds and hearts of men.” Shane at times references the functioning needs of the executive branch, for example when it comes to acting officials. But his focus is on fostering deliberation and dialogue, not pushing initiatives through in the face of division and bureaucratic opposition.
To be clear, effective government doesn’t necessitate the unitary executive. On the contrary, there’s good reason to conclude that government will be less effective when the president controls all executive branch decisionmaking and can fire any executive branch officer at will. The president and White House staff lack the information, expertise, and deep familiarity with government programs of career officials; moreover, implementation capacity lies with agencies. At the same time, as then-Professor Elena Kagan argued, presidential oversight often provides essential energy and direction for actualizing policy, especially in a world of sharp political divides. Some reforms that Shane advocates to foster deliberation and dialogue, such as bringing presidential involvement in agency decisionmaking under the purview of the APA and judicial review, would pose significant obstacles to such presidential direction.
This trade-off between deliberation and effective action is particularly striking when Shane turns to Congress. He accords Congress prime responsibility for producing a democratic chief executive, identifying measures Congress could enact to encourage greater executive branch openness and dialogue. But he is wary of measures that would allow Congress to directly control executive branch decisionmaking other than by enacting legislation. A prime example is the legislative veto, where one house of Congress (or even one congressional committee) can act within a limited window to cancel a proposed executive branch action. Rejecting the originalist and structural arguments against the legislative veto that the Supreme Court offered in INS v. Chadha, Shane maintains that the real problem with the legislative veto is that it threatens deliberative democracy in both the legislative and executive branches. This concern is well-taken. The point of the legislative veto is to allow legislators to stop executive action they disapprove of without having to garner sufficient collective support in both chambers—and from the president—to amend the governing statute. And such congressional interventions can displace actions that reflect sustained engagement and dialogue across the executive branch and with outside interests. On the other hand, Congress struggles to act effectively these days, with deep partisan divides combined with slim majorities and the Senate filibuster precluding enactment of substantive legislation. Whether the line item veto actually is an effective congressional tool is debatable, given its limitation to cancelling proposed executive branch actions and the fact that Congress often can exert similar influence through notification requirements. At a minimum, however, the line item veto’s effectiveness should matter in assessing its impact on democratic government.
More broadly, while restraining aggressive presidentialism is important, rethinking governing approaches to Congress may be the more urgent democracy-reinforcing task. The primacy public law puts on up-front congressional deliberation and substantive legislation is a poor match for how Congress actually functions. Reliance on back-end measures like appropriations and oversight is more the order of the day than front-end enactments. And when legislation is enacted, it is more likely to take the form of omnibus and leadership-controlled measures or use procedures like recission, with limited opportunities for rank-and-file input. Particularly with the Supreme Court demanding congressional approval of specific agency decisions, designing even imperfect mechanisms through which Congress can act is increasingly imperative.
Gillian Metzger is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School.