*This is the fourteenth 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.
Democracy’s Chief Executive has the great virtue of being right. Peter Shane offers a full throated defense of a democratic, pluralistic presidency as an alternative to the unitary and often authoritarian one that has taken shape over the past half century. The book is valuable both for its criticisms of the conservative theory and practice of presidential power that has dominated since Reagan, as well as for its constitutional arguments and policy prescriptions in favor of a progressive-constitutional alternative. Shane shows that the Trump Administration was not merely an anomaly, but rather an extreme outgrowth of presidentialist and antiregulatory theories that have percolated on the right for some time. The book is refreshingly candid about the political valence of constitutional controversies around executive power. It notes that the unitary theory is connected to a “neoliberal” approach to public policy that has corroded the foundations of republican government (p. 155).
When you agree so thoroughly with a book’s central arguments, it can be hard to know what more there is to say. But I’d like to suggest that there is a deeper, substantive sense of “democracy” underlying the argument that deserves further study and elucidation.
Democracy’s Chief Executive demonstrates that the originalist arguments in favor of plenary and unilateral presidential control over executive agencies are unpersuasive. The book is worth a read for this alone: It martials in one place a comprehensive and devastating critique of originalist arguments for the unitary executive. If textual and historical evidence made a difference in the Court’s jurisprudence on presidential power and administrative law, the unitary theory would be toast. Alas.
Despite Shane’s careful and rewarding efforts to counter originalist arguments for presidentialism, Democracy’s Chief Executive is not ultimately an originalist work. He operates under no illusion that an originalist critique of the unitary executive is likely to move the Court. The first half of the book rather clears substantial brush for an affirmative, normative theory of presidential power.
Shane offers a living constitutionalist, deliberative democratic theory of the presidency and American government as a whole. Deliberative democratic theory—which has been embraced by other administrative law scholars, including Jerry Mashaw, Susan-Rose-Ackerman and me—emphasizes the need for public participation and reason-giving in government decision-making. The thought is that elections alone are insufficient to ensure meaningful self-government. If one adopts such a deliberative understanding of democracy, the unitary theory of the presidency is quite unappealing. It tends to sideline public involvement and reasoned explanation in favor of raw assertions of political power, which are only loosely tethered, if at all, to majoritarian preferences. It is far better to distribute executive power amongst multiple officials who can represent different values and constituencies within the democratic polity, and conduct policymaking on a discursive rather than coercive basis. As Jon D. Michaels and I have argued, deliberative democracy requires abandoning “presidential administration” in favor of “civic administration,” which would diffuse power away from the White House, and empower civil servants, state and local governments, and civil society stakeholders.
As Shane acknowledges, however, there are serious practical problems with realizing such a vision given the ideological composition of the Supreme Court and the sorry state of American civic life. The Court’s conservative super majority appears to have an unalterably closed mind in favor of diminishing the powers of administrative agencies while enhancing its own and that of the presidency. This position is strategically shrewd. Even if Democratic presidents may gain some occasional policy benefit from enhanced White House control over agencies, the long-term effects of undermining civil servant independence and administrative capacity are likely redound to the benefit of the Republican party’s anti-regulatory preferences. Republicans can rely on federal inaction and incompetence to achieve their goals; Democrats’ program requires the state to work. And, as evidenced by the Court’s recent pandemic and climate change decisions, the justices need not defer to presidential prerogatives when doing so doesn’t suit their tastes. For reasons like this, Shane entertains proposals ranging from court expansion to limiting the number of years a justice sits on the court (p. 215).
An even bigger obstacle, Shane suggests, is the lack of popular determination to make a raft of important governance reforms that would put the presidency in its proper place within American government. The book thus concludes—not with structural-constitutional reform—but with proposals to “reenergize American democracy,” by protecting voting rights, making political participation easily accessible, and improving public education and journalism. A particularly interesting proposal is a “National Institutes of Democracy” which would provide opportunities for “local deliberative democracy” in action (p. 224). Together, these steps would help to empower American citizens, which in turn would enable them to reign in the “entitled” and antidemocratic presidency that has come into ascendancy. A democratic presidency, it seems, cannot be achieved absent full-scale renewal in civic life.
I am sympathetic to such arguments for massive investment in the rejuvenation of the political public sphere. However, the argument here raises a difficulty: How are these major (and in some cases, expensive) reforms to come to pass given the current poverty of our political life, the structural-constitutional obstacles to legislative reform, and the efforts of many in the Republican party to undermine free and fair elections?
That’s a hard question, and it may not be one law professors are well positioned to answer. However, I think there is a constitutional argument that might help. As Willy Forbath and Joey Fishkin have recently argued, the American constitutional tradition is concerned not merely with procedural fairness but with substantive justice, including a concern to prevent oligarchy. This constitutional view played a key role in the expansion of the federal administrative state, from Reconstruction through the New Deal, as legislatures, presidents, and agencies sought to combat the concentration of economic power and status based exclusion. The anti-oligarchy principle Fishkin and Forbath recover is compatible with Shane’s theory of democratic constitutionalism, which includes a principle of “equal respect.” In a context of deep economic inequality and structural discrimination, equal respect cannot be achieved without extensive social welfare provision, market regulation, and perhaps even transformation of workplace governance along the lines of “industrial democracy.” There are simply too many opportunities otherwise for the wealthy and powerful to exploit others. For this reason, democracy itself requires the institutions of the administrative state, in particular those that protect public health, safety, and equality.
A substantive understanding of “democracy’s chief executive” therefore would emphasize the statutory commitments that the executive implements—commitments that markets be fair and equitable, that essential infrastructure and services be available on just and reasonable terms, and that people not be excluded from economic and social life on the basis of race, gender, or religion. These are the basic principles upon which many of the core regulatory agencies of the executive branch are grounded. They are intrinsically connected to democratic constitutionalism, insofar as political equality can only be enjoyed if people have the resources and protections to engage one another on terms of parity and mutual respect.
Focusing on these substantive commitments, and furthering them through administrative as well as legislative action, may be the most feasible way to jump start an American political process that has fallen badly into disrepair. It may be easier to overcome the hurdles to action if we turn attention not just to the forms of political empowerment Shane emphasizes—which many people may not perceive to be immediately appealing or useful—but also on direct, material benefits and positive rights protections. Alongside funding civic engagement, then, elected and administrative officials ought to focus on substantively egalitarian outputs.
The more government can successfully deliver on the constitutional promise of social equality, the less citizens are likely to seek out a presidential strongman to address their grievances, take out their aggression on the vulnerable, or to indulge vicariously in a fantasy of personal power. As Shane shows, the unitary executive arose in tandem with a conservative political project to undo the welfare state. The subsequent rise of economic inequality has created a hierarchical social situation that mirrors and perhaps deepens the hierarchical structure of the unitary executive. Trump, after all, simply transplanted the practices of the abusive business boss—“you’re fired!”—into the halls of government. It may be that presidential aggrandizement has held such attraction because people feel so powerless in their own private lives, and take some glee at someone exercising real power on their nominal behalf. If that is so, we will need to focus on rebuilding a society of equals in order to lay a firm basis for the democratic form of executive power.
Democracy’s Chief Executive draws attention to these social foundations of constitutional government. Constitutional and administrative law scholars ought to pursue Shane’s line of thought further, and complement their attention to procedural and structural questions with a moral concern for the public purposes executive action is meant to pursue.
Blake Emerson is Professor of Law at the UCLA, and the author of The Public’s Law: Origins and Architecture of Progressive Democracy.