Introduction
Modern administration is presidential administration. Yet, even as presidential administration has become a defining feature of contemporary governance, it remains mysterious. Its legal foundations are unstable; its origins are murky; and its justifications are deeply contested. Aiming to legitimize it, the Supreme Court and legal scholars have turned to history. But, lacking adequate context, they have misunderstood the past—and so the logic and aims of the practice itself.
This Article uses original archival research and rigorous historical contextualization to offer a revisionist account of presidential administration. It traces the intellectual origins of presidential administration to early twentieth-century Progressive Era reform efforts to make American government more responsible. And it shows how, during the New Deal, the institutions that would enable executive control of the administrative state were reimagined in light of fascism. Presidential administration would make American democracy accountable and efficacious in order to stand up to European fascists abroad, while simultaneously checking the American executive in order to prevent it from becoming fascistic at home.
At the center of this story is a subtle but remarkable reversal. For Progressive Era reformers, strengthening the presidency was a way to overcome what they believed were design defects in the American state, especially the separation of powers. The New Deal creators of the modern executive thought differently. They were the Progressive reformers’ intellectual successors and shared their goal of making American democracy responsible. In contrast with the Progressives, however, the New Dealers embraced the written Constitution, especially its principle of separation of powers. This Article reconstructs these overlooked developments and shows their connection to the fight against fascism.
This recovered history has important consequences for contemporary law and legal scholarship. It provides a pair of reasons for resisting the so-called “unitary executive theory” of Article II and suggests the legitimacy of an alternative approach to the presidency, the “internal separation of powers.” It also motivates a litmus test that can help assess theories of presidentialism and so rethink recent debates about the fascistic tendencies of the modern executive.
The argument proceeds in five parts. Part I canvasses the study of presidential administration to explain the recent turn to history. It shows how questions about the legal authority for executive control of administrative action have motivated a search for historical foundations. While the Supreme Court has sought to ground administrative presidentialism in the vision of the Founders, most scholars have recognized its institutional origins in the work of the New Deal–era President’s Committee on Administrative Management (PCAM). Part I argues that, although the Committee was indeed influential, its work has been misunderstood. In particular, lacking appropriate historical context, scholars have generally read it to be more aggressively in favor of unchecked executive power than it actually was.
Part II begins elaborating a more contextualized understanding of the Committee’s report. It shows how these New Dealers were informed by the work of a Progressive Era reform science: public administration. It then turns to the writings of the field’s two influential cofounders, Frank Goodnow and Woodrow Wilson, to show how they believed empowering the executive could make American democracy more efficacious and accountable. This was the Progressive dream of “responsible government.”
Part III explores the extent to which New Deal reformers kept faith with their Progressive Era teachers. It shows how PCAM followed Goodnow and Wilson in seeking to make American democracy more responsible by empowering the executive. But PCAM broke with public administration orthodoxy on the question of constitutional separation of powers. For Goodnow and Wilson, the written Constitution was a problem to be overcome, and separation of powers was part of what made the American republic irresponsible. The members of the President’s Committee disagreed. Their report grounded its reforms in the written Constitution. And their recommendations embraced the principle of separation of powers by embedding it within the executive branch.
Part IV seeks to understand this important reversal. It uses the Committee’s internal files and a close reading of its report to show how it relied on separation of powers to keep fascism at bay. The threat of fascism imposed a dual burden on the Committee’s work. It made its task more urgent, since only an efficacious and accountable democracy could stand up to the European fascist menace. But it also raised worries about the fascistic risks posed by an empowered chief executive. A crucial encounter with a fascist intellectual at a policy conference in 1936, which PCAM chair Louis Brownlow later dubbed “the Battle of Warsaw,” helped push the New Dealers to clarify what would make America’s executive different from the fascist administrations of Europe. Ultimately, PCAM embraced separation of powers and internal divisions within the executive branch to distinguish American presidential administration from the fascist Führerprinzip.
Part V draws out the consequences of this historic reversal for contemporary law and legal scholarship. First, it raises two challenges to the theory of the unitary executive. It shows that, contrary to the assertion of some defenders of the theory, the executive branch has not always interpreted Article II in a unitary fashion. And it recovers a functional argument against putting all nonlegislative and nonjudicial officers under the President’s control or supervision. Second, it provides a historical foundation and some doctrinal justification for a competing school of Article II jurisprudence, the tradition of the internal separation of powers. This approach has sometimes struggled with legitimacy and rarely looked to history to ground its claims. This Article shows that such scholarship finds a legitimizing root in the work of the President’s Committee and might even be entitled to some judicial deference under the Supreme Court’s “longstanding practice” doctrine.
Finally, and most importantly, this history reminds us of the foundational, antifascist commitment of the modern American executive. To the members of PCAM, who confronted fascist intellectuals in Europe, fascist administration was a concrete threat. It presented itself where government became nothing but an extension of the personality of the chief executive. They sought to design a government that would make the President powerful without courting that risk.
This suggests a litmus test for theories of executive power that can be used to shed new light on recent debates about the fascism of the American presidency and analyze recent proposals for executive branch reform. Understanding our antifascist history is a first step toward vindicating it anew.