Presidentialism, Democracy, Interpretation: Notes of a Grateful Author (Part 1), by Peter M. Shane
*This is the fifteenth 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.
My first reaction to the just-ended three-week symposium on my book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency (DCE), is one of profound gratitude. The fourteen scholars who contributed such thoughtful reactions to the volume were already high on the list of professional colleagues whose work I rely on for both insight and inspiration. I have now learned much from their constructive critiques (and, of course, derived much satisfaction from the numerous generous compliments). I am especially indebted to my fellow former Buckeye, Professor Chris Walker, who instigated the virtual convening, and to Professor Andrea Katz, who not only recruited so stellar a group of commenters, but who launched the series with her own excellent summary of some of the book’s major arguments. Thanks are due also to Elaine Hou (YLS ’23), the Yale Journal on Regulation’s Online Director, who ably oversaw implementation of the program.
Democracy’s Chief Executive argues for an anti-authoritarian vision of the presidency. Reading Article II through the lens of what I call “democratic constitutionalism,” I propose to resolve many of the Constitution’s ambiguities regarding the separation of powers in ways that advance checks and balances and enhance Congress’s capacities to structure, regulate, and oversee the exercise of executive power. Although this approach is most consistent with the pragmatism and institutional ambitions guiding the founding generation, it is not, at its heart, originalist. As a species of adaptavist interpretation, it stands in opposition to the highly formalist version of “original public meaning” originalism now dominant in the Supreme Court. In the Court’s hands, originalism has led to an accelerating, albeit still unpersuasive embrace of so-called “unitary executive theory,” which “ascribes to the President complete authority to command how every officer of the federal executive branch implements whatever discretion he or she has with regard to carrying out federal law.” Although not every lawyer or legal academic adhering to the Court’s views is on the political right, the ascendancy of both contemporary originalism and unitary executive theory has everything to do with their attractiveness to conservatives in the wake of Brown v. Board of Education and right-wing expectations from the late Sixties forward that Republican control of the White House would be the Right’s surest path to policy dominance. I conclude the book with an analysis of the larger social, economic, and political conditions under which democratic constitutionalism could plausibly become ascendant. The final chapter suggests some possible reforms, both within and beyond government, that would advance those conditions. All told, the book necessarily engages with a variety of literatures: on democratic theory, constitutional history and interpretation, and public administration.
The fourteen contributions cover so many issues across these diverse realms that I have divided my reactions into two essays. In this part, I will react to the commenters’ perspectives on the theory and practice of democracy. In Part 2, I will discuss matters of constitutional interpretation and some of the suggestions commenters have made regarding institutional reform.
The appeal of any argument for “democracy’s chief executive” depends inevitably on an underlying conception of democracy. Several commenters expressed a wish for a fuller description of that conception than they discovered in DCE. Professor Whittington found the “theoretical structure [regarding democracy] . . . [not] established with enough detail to provide us with guidance for how we should resolve future questions.” For their part, Professors Staszewski and Emerson would want (and have suggested) a fuller elaboration of how the substantive vision of democracy underlying DCE might be fleshed out.
It is not unfair to say that the theory of democracy underlying DCE warrants further elaboration, although it might take yet another book to fully satisfy Professor Whittington’s requirements. I do assert in DCE that for a theory of democracy to legitimate government, its institutions must be designed to promote both equal respect for the interests of all citizens during collective decision-making and opportunities for each citizen to experience himself or herself as an authentically efficacious actor in the formation of the collective will. I further argue that the U.S. system of democracy relies on institutions designed to fulfill these promises in a variety of ways. One is through institutions linked to electoral democracy, for which I would cite the foundational institutions identified in the work of Robert Dahl. A second is through institutions designed to support inclusive public policy dialogue both within government and outside it—deliberations that may or may not revolve around elections. These institutions align with what has come to be called deliberative democracy. Undergirding both electoral and deliberative democracy are institutions supporting the rule of law. Drawing on Paul Gowder’s thoughtful account of the importance of “generality” in the formulation and execution of law, I argue that the requirement that cases and individuals be treated alike unless there is a relevant legal distinction between them is a critical way in which the rule of law helps to fulfill democracy’s promises of equal respect for all persons.
In their comments on DCE, Professors Staszewski and Emerson are spot on in reading into my positions a substantive commitment to an anti-domination principle or, as Emerson draws from the work of Professors Willy Forbath and Joey Fishkin, an “anti-oligarchy principle.” Equal respect for the interests of all and meaningful opportunities for political efficacy are both intended to undergird a democratic culture that, as Staszewski puts it, will “limit the possibility of private domination by the politically strong of the politically weak.” Both Staszewski and Emerson go further, making plausible arguments for what constitutionalism of this sort entails beyond empowering Congress to constrain presidentialism—in particular, they seem to suggest that some aspects of the modern regulatory state might be constitutionally mandatory. DCE advances only the more modest claims that the administrative state is consistent with democracy and that the Constitution ought not to be read as blocking Congress’s attempts to create and sustain one.
In his own very generous response, Professor Sant’Ambrogio expresses his hope that a values-centered approach to constitutional interpretation might also embrace a range of “fundamental values to which our citizenry is committed, including such values as privacy, bodily autonomy, and equal opportunity, even as we refine their meaning.” I would suggest that a compelling substantive account of democracy could well be thought already to comprise these values, which might be deemed prerequisite to fulfilling the anti-domination principle. If I were to write a fuller treatment of my conception of democracy, I would certainly want to explore more deeply what democracy implies for the life of the individual, not just for the institutions of government.
Professors Gillian Metzger and Cristina Rodríguez, along with Professor Walker, root their reactions to my arguments on democracy with concerns about the actual practice of government. Professor Walker correctly aligns my work with the outlook of Jerry Mashaw, which regards contemporary administrative agencies as critical sites for the workings of deliberative democracy. In response, Walker states that the Mashaw position “both underestimate[s] Congress’s role and overestimate[s] bureaucracy’s in legitimating democracy.” Walker elaborates:
- “[M]embers 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.”
- “As Professors Mashaw and Shane both seem to recognize, the administrative state is much better at advancing deliberative accountability than electoral or aggregative accountability.”
- “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.”
Walker is correct, of course, that Congress deliberates, and its members frequently state the reasons for their votes and ultimate handiwork. Its workings are immensely important for mobilizing deliberative democracy. However, Members of Congress are not held accountable for their reasoning on an initiative-by-initiative basis as are administrative agencies, which confront the demands of judicial review. Not only are voters ill-positioned to hold legislators to account for their reasoning, but the conservative judiciary’s antipathy towards reliance on legislative history makes that reasoning even less relevant in determining the soundness of their work.
As for Proposition 2, I am not sure what to make of Walker’s comparative statement. It is true that agencies do not run electoral campaigns; in that sense, they are not direct participants in electoral politics. But it is not at all clear that they are less responsive than Congress to what Rodríguez calls the “values and preferences” that animate any elected regime. Mashaw’s classic 1985 article on the desirability of broad delegations makes this point.
And Walker’s third proposition simply elides the key issue in dispute. Even if one accepts for purposes of argument that presidents are uniquely positioned to advance the electoral and deliberative accountability of the executive branch, that fact does not resolve the question whether democracy is best served by giving the President “robust control”—the presidentialist position—or “strong influence”—the position of DCE.
This brings me to the comments of Professors Metzger and Rodríguez, two of the contemporary legal academy’s most creative and productive thinkers regarding presidents and their relationship to bureaucracy. Both share my concern that presidentialism can turn into authoritarianism. Both see how excessive presidential control of government can make its performance worse, a point also made by Sant’Ambrogio. Yet both are cautionary lest the anti-presidentialist position be taken to imply a desiccated role for politics in effective administration or to overemphasize the role of unelected judges in securing democratic legitimacy for the administrative state. Rodríguez counsels that a “preference for agency-driven action need not be mutually exclusive with a certain amount of steering from the White House.” For Metzger, “[W]hile restraining aggressive presidentialism is important, rethinking governing approaches to Congress may be the more urgent democracy-reinforcing task.”
As a general matter, I do not actually disagree with either of these propositions. As I write in DCE: “The democratic constitutionalist President need not be a weak chief executive.” Presidents are uniquely positioned institutionally to perform vital functions of coordination and agenda-setting. White House involvement in the shaping of governance may well, as Rodríguez contends, “introduce forms of thinking critical to effective and inclusive decision making.” There is, as she says, a salutary complementarity between “pro-active, policy-driven, politically sensitive, risk-tolerant” orientation seen most often among political officials and the more “reactive, expertise-driven, implementation sensitive, and risk averse” outlook more characteristic of career civil servants. Whether the two will be properly balanced, however, is likely to turn in no small part on whatever organizational psychology permeates the executive branch—a psychology of unilateral entitlement or of constitutional obligation. This is where unitary executive theory poses dangers and why constitutional interpretation, which I discuss in Part 2, is so important.
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at The Ohio State University Moritz College of Law and Distinguished Scholar in Residence, NYU Law.