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. …