American Executive Power in Historical Perspective

By Cuellar, Mariano-Florentino | Harvard Journal of Law & Public Policy, Winter 2013 | Go to article overview

American Executive Power in Historical Perspective


Cuellar, Mariano-Florentino, Harvard Journal of Law & Public Policy


During the course of almost any presidential administration, certain White House and cabinet-level decisions almost inevitably will catalyze intense controversy about the scope of executive power. My aim here is to offer some context for such discussions by pursuing two objectives meant to spur further deliberation. The first aim is to situate some of the debate in its larger historical context--a context that showcases a recurring interest in robust, democratically sanctioned executive power across administrations. My second aim is to observe how that history is evolving in certain respects even as questions persist about accountability, structure, and the limits of judicial power to oversee executive actions. I do not expect, in the process, to directly answer every prescriptive question about the scope of presidential power and executive organization. Instead, my goal is to build some of the analytical scaffolding for continuing a conversation about a democratically constrained executive branch facing enormously complex challenges that cut across domestic affairs as well as foreign policy.

Max Weber once argued for recognition of the centrality of executive functions in modern government by observing that "power is exercised neither through parliamentary speeches nor monarchical enunciations but through the routines of administration." (1) No doubt Weber would have recognized the priority that the Reagan Administration thus assigned to shaping the work of the executive branch, given its ambitious domestic and foreign policy agenda. With Watergate still a relatively recent event, policymakers and the public engaged in a far-reaching, trans-substantive discussion about the role of the presidency in relation to agencies, Congress, and the courts. In that discussion, the Reagan Administration stood for the proposition that a vigorous executive needed to play a pivotal role in shaping the country's agenda both in domestic and in international affairs. (2) On the domestic side in particular, certain well-known recent cases in administrative law--such as Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. (3) and Environmental Defense Fund v. Thomas (4)--implicate decisions of the Reagan Administration asserting a considerable measure of executive control over the law's administration. Through the decisions of senior administrators and the creation of new procedures, the White House sought to shape the administration of statutory programs to reflect a particular philosophy of how the law should be implemented.

This approach did not garner universal agreement. (5) Nonetheless, as Justice Rehnquist concluded in his concurrence-in-part in State Farm, it can be defended for reflecting a degree of democratic legitimacy--an interest that the administration has in implementing the laws in a different way, inasmuch as that implementation is consistent with congressional statutes. (6) "'As long as the agency remains within the bounds established by Congress," he writes, "it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration." (7) How, Justice Rehnquist asks, can we expect elections not to matter when the administrative state carries out its responsibility? (8) Surely, he implies, we would still expect much of the government's legitimacy to flow from the President's distinctive role as a national elected official with crosscutting responsibilities encompassing the entire executive branch.

While that notion of robust, democratically legitimate executive power has sometimes been associated with the Reagan Administration and its successors, it turns out to have longer roots. It was invoked not only in the recent past, as with the Reagan Administration's approach to executive power or Justice Scalia's defense of the Chevron doctrine. (9) Nor is it found only in recent court decisions such as Free Enterprise Fund v. Public Company Accounting Oversight Board. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

American Executive Power in Historical Perspective
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.