Reconsidering the Modern Hanoverian King
Levinson, Sanford Victor, Harvard Journal of Law & Public Policy
Perspectives on executive power might not break down along the usually predictable liberal-conservative lines. With regard to the recent tendency for the executive branch to rely increasingly on presidential "super-assistants," often referred to by the press as "czars" of their particular subject-area domain, I tend to share with Bruce Ackerman the view that this is a very unfortunate development. (1) It would be far better if these "czars" were subject to Senate confirmation and, perhaps even more importantly, congressional oversight in the form of having to testify before Congress. "Czars" are currently exempt from congressional oversight as presidential "assistants." The reason for having more czars, however, is a failure of comity in the Senate, which, in turn, has led to a failure to give timely hearings and vote nominees up or down. (2)
There are many other examples of divisions within ordinary political ranks concerning executive authority. I disagree, for example, with the robust reading of the war power offered by former Yale Law School Dean Harold Koh with regard to the skirmish in Libya, (3) and I disagree even more strongly with a number of things that Professor John Yoo has written about the scope of presidential power in the realm of foreign and military policy.
In thinking about executive power, one of the themes running throughout the discussion is the need to reform certain aspects of how we organize our officialdom. Again, one might emphasize that there appears to be a certain bipartisan dissatisfaction with many aspects of contemporary governance, even if there is also vigorous disagreement as to the direction of specific reforms. I want to place my remarks within the context of our discussions of line-item vetoes and Congress's relationship to agencies, though somewhat obliquely. Rather than weighing in on the specific merits of proposed changes (or retaining the status quo), I want instead to focus on different sensibilities toward considering potential reforms.
One of the things I found fascinating about the presentation by Professor Michael McConnell (4) was its degree of radicalism, no doubt a surprising comment to those who do not usually think of him in such terms. Nevertheless, there are two senses in which it might be not only provocative, but even helpful, to address his potential radicalism. With regard to his central topic, the organization of the modern administrative state and the relative powers of Congress and executive agencies, one might see him as echoing one of the basic issues addressed in the great debate in the 1960s in China. (5) That debate pitted against each other the comparative powers of ideologically committed Communists-who (in their self-definition) were concerned with, and responsible to, the general good of the Chinese people--against experts, whose authority was based on specialized knowledge, whether or not such knowledge was, as one might say, "politically correct." Obviously, one need not turn to China to find such debates. Similar debates--far less disruptive, fortunately, than those in China--occurred in this country about the relative autonomy of administrative agencies and the basis of their authority. (6) The Administrative Procedure Act, the focus of Prof. McConnell's remarks, was the outcome.
The basic debate, both then and now, is this: How (and, of course, by whom) should rules be made? What is the relative trade-off between looking to experts versus looking either at the demos or, at the very least, a particular portion of the demos that claims authority to rule because of its deep connection with the people? In this debate, politics is seen by and large as the choice of first-order values rather than a means by which one might most efficiently and rationally achieve already-agreed-upon ends by choosing among various available means. Expert knowledge certainly seems relevant to the latter that might not be (so much) the case when it is the choice of ends themselves that is at issue. …