The unbundled executive

University of Chicago Law Review

Volumn 75, Issue 4, 2008, Pages 1385-1434

  Berry, Christopher R ^a   Gersen, Jacob E ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 59549094645     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (196)

1. US Const Art II, § 1 ("The executive Power shall be vested in a President of the United States of America.") (emphasis added).
2. For example, Eldridge Gerry favored annexing a council to the executive. In general, participants in the Federal Convention were concerned that a single executive would trend towards monarchy but that a plural executive would lack sufficient energy and authority. See Records of the Federal Convention, in Philip B. Kurland and Ralph Lerner, eds, 3 The Founders' Constitution 491-95 (Chicago 1987).
3. See John Locke, Second Treatise of Civil Government § 144 at 72 (Blackwell 1946) (J.W. Gough, ed).
4. See also Oliver Ellsworth, The Landholder, VI, in Paul Leicester Ford, ed, Essays on the Constitution 161, 163 (Historical Printing 1892) ("[T]he supreme executive should be one person, and unfettered otherwise than by the laws he is to execute.").
5. See William Blackstone, 1 Commentaries on the Laws of England *242-43 (Chicago 1979).
6. See Federalist 70 (Hamilton), in The Federalist 471, 471 (Wesleyan 1961) (J.E. Cooke, ed) (arguing that the energy in a single executive is critical for security and steady implementation of laws).
7. See Baron de Montesquieu, The Spirit of Laws 156 (Hafner 1949) (Thomas Nugent, trans) ("The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many.").
8. See William N. Thompson, Should We Elect or Appoint State Government Executives? Some New Data Concerning State Attorneys General, 8 Midwest Rev Pub Admin 17, 17 (1974) (noting that attorneys general are elected in forty-two states and that many other state-level executives are elected).
9. See, for example, Montesquieu, The Spirit of Laws at 156 (cited in note 6). See also William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale L J 2446, 2453-55 (2006) (discussing interaction between elected attorneys generals and governors and observing that "debilitating conflict" does not occur). Marshall's work is probably the closest to our own.
10. See Christopher R. Berry and Jacob E. Gersen, Fiscal Consequences of Electoral Institutions, 52 J L & Econ (forthcoming 2009).
11. See Hamdi v Rumsfeld, 542 US 507, 580-81 (2004) (Thomas dissenting) ("The Founders intended that the President have primary responsibility-along with the necessary power-to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains.");
12. Clinton v Jones, 520 US 681, 712-13 (1997) (Breyer concurring) (explaining that Article II seeks to focus all executive responsibility in a single person).
13. See, for example, Federalist 48 (Madison), in The Federalist 332, 335 (cited in note 5).
14. Compare Montesquieu, The Spirit of Laws at 152 (cited in note 6) ("There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, [that of the legislature,] that of executing the public resolutions, and of trying the causes of individuals."),
15. with Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 S Ct Rev 225, 236 ("The substantive interpretation of the constitutional principle of separation of powers would reduce to a single, simple rule: Congress may not create a Fourth Branch of the federal government.").
16. There is, of course, a significant literature on the allocation of authority within the US Congress. See generally Kenneth Shepsle and Barry Weingast, Positive Theories of Congressional Institutions (Michigan 1995).
17. This idea is related to (but also distinct from) recent work emphasizing internal separation of powers as an organizing principle for the executive. See Neil Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L J 2314, 2318 (2006) (arguing that separation of authority within executive departments could provide a check on the aggrandizement of arbitrary executive power).
18. There is, of course, no shortage of work on the importance of bicameralism in this regard. See, for example, Saul Levmore, Bicameralism: When Are Two Decisions Better Than One?, 12 Intl Rev L & Econ 145, 149 (1992) (clarifying conditions under which multiple decisions produce superior outcomes in the legislature).
19. See also William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation 75-77, 383-91 (West 2001).
20. See, for example, Christopher S. Yoo, Steven G. Calabresi, and Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L Rev 601, 730-31 (2005);
21. Robert V. Percival, Presidential Management of the Administrative State: The Not-so-Unitary Executive, 51 Duke L J 963, 966 (2001);
22. Steven G. Calabresi and Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv L Rev 1153, 1208-13 (1992). See also note 10.
23. See, for example, Clinton, 520 US at 711-13 (Breyer concurring) (arguing that the president cannot constitutionally delegate "ultimate responsibility or the active obligation to supervise that goes with it");
24. Morrison v Olson, 487 US 654, 660 (1988) (holding that the independent counsel provisions of the Ethics in Government Act do not impermissibly interfere with the separation of powers established by the Constitution);
25. Myers v United States, 272 US 52, 176 (1926) (recounting historical debates over the scope of executive power and concluding that the president does not have the power to remove inferior officers).
26. See, for example, Richard H. Pildes and Cass R. Sunstein, Reinventing the Regulatory State, 62 U Chi L Rev 1, 15-16 (1995);
27. Geoffrey P. Miller, Independent Agencies, 1986 S Ct Rev 41, 45;
28. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum L Rev 573 (1984).
29. Roughly speaking, this debate has two fault lines, one historical and one normative. There is disagreement about the historical question of whether the Founders intended a strong unitary executive. Compare Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541 (1994) (yes),
30. Calabresi and Rhodes, 105 Harv L Rev at 1191-92 (cited in note 15) (yes), with Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 Colum L Rev 1, 2 (1994) (no).
31. In addition to this historical question, there is a separate normative question about whether a strong unitary executive is desirable on pragmatic or consequentionalist grounds. Compare Lessig and Sunstein, 94 Colum L Rev at 2 (desirable), with Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L J 1725, 1810-36 (1996) (undesirable).
32. For variants of the argument that Article IPs Vesting Clause settles the question of plural versus single executive but not the question of strong versus weak hierarchical control, see Morton Rosenberg, Congress's Prerogative over Agencies and Agency Decisionmakers: The Rise and Fall of the Reagan Administration's Theory of the Unitary Executive, 57 Geo Wash L Rev 627, 634 (1989) (suggesting that the unitary executive theory is a myth generated for political reasons);
33. E. Donald Elliott, Why Our Separation of Powers Jurisprudence Is So Abysmal, 57 Geo Wash L Rev 506, 529-31 (1989) (arguing that the text of the Constitution does not shed sufficient light on the issue of a strong versus weak unitary executive);
34. Bruce Ledewitz, The Uncertain Power of the President to Execute the Laws, 46 Tenn L Rev 757, 762 (1979) (comparing theories about the hierarchy of congressional and presidential powers).
35. See, for example, Kevin Stack, The President's Statutory Powers to Administer the Laws, 106 Colum L Rev 263 (2006) (arguing that the president has no direct authority to administer laws when Congress grants power to executive officers subject to presidential control unless the statute grants the authority to the president by name).
36. See Percival, 51 Duke L J at 966 (cited in note 15).
37. Compare Abner Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U Chi L Rev 123 (1994) (arguing that the growth of national government makes arguments for a strongly unitary executive less powerful),
38. Cass R. Sunstein, Constitutionalism after the New Deal, 101 Harv L Rev 421, 447 (1987),
39. with Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv L Rev 1231 (1994).
40. Timothy Besley and Stephen Coate, Elected versus Appointed Regulators: Theory and Evidence, 1 J Eur Econ Assn 1176 (2003);
41. Timothy Besley and Stephen Coate, Issue Unbundling via Citizens' Initiatives (unpublished manuscript, 2000) (suggesting that issue bundling explains the relevance of direct democracy in a representative system where candidates must already compete for the right to control policy). We owe an obvious intellectual debt to Besley and Coate, as we have built upon their work here and elsewhere.
42. Compare Jide Nzelbe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L Rev 1217, 1231-43 (2006) (arguing that the Framers did not think the president would better represent nationalist interests than Congress);
43. James W. Ceaser, Presidential Selection: Theory and Development 47, 64-75 (Princeton 1979) (describing the Framers' vision of executive power).
44. See Alan Siaroff, Varieties of Parliamentarianism in the Advanced Industrial Democracies, 24 Intl Polit Sci Rev 445, 446-47 (2003);
45. Bruce Ackerman, The New Separation of Powers, 113 Harv L Rev 633, 664-65 (2000);
46. Alfred Stepan and Cindy Skach, Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism, 46 World Politics 1, 3-4 (1993).
47. See Dennis M. Simon, Presidents, Governors, and Electoral Accountability, 51 J Politics 286, 286-87 (1989) ("According to this perspective, electoral accountability is imposed on a systemic or national basis through voting which is presidency-centered, retrospective, and result-based").
48. See Jane Mansbridge, Rethinking Representation, 97 Am Polit Sci Rev 515, 516-25 (2003) (developing models of representative democracy).
49. See also generally Robert A. Dahl, Democracy and Its Critics (Yale 1989);
50. Amartya Sen, Poverty and Famines (Oxford 1983).
51. See, for example, Torsten Persson and Guido Tabellini, Political Economics: Explaining Economic Policy (MIT 2000) (providing a masterful survey and synthesis of the contemporary literature on democratic policymaking).
52. See R. Douglas Arnold, Can Inattentive Citizens Control Their Representatives?, in Lawrence C. Dodd and Bruce I. Oppenheimer, eds, Congress Reconsidered 401, 404-06 (CQ Press 5th ed 1993);
53. Anthony Downs, An Economic Theory of Democracy 219 (Harper & Row 1957);
54. Arthur Lupia and Mathew D. McCubbins, The Democratic Dilemma: Can Citizens Learn What They Need to Know? 79 (Cambridge 1998).
55. See generally Angus Campbell, et al, The American Voter (Wiley 1960) (documenting widespread lack of information and opinions about politics).
56. See John R. Zaller, The Nature and Origins of Mass Opinion 311-13 (Cambridge 1992) (finding that public opinion is created by officials and elites rather than preexisting in voters);
57. William Riker, Liberalism against Populism 136 (Freeman 1982) (explaining that there is "an unresolvable tension between logicality and fairness" that prevents discovery of a true majority preference through electoral voting mechanisms).
58. See generally Dennis C. Mueller, Public Choice III (Cambridge 2003).
59. Seminal contributions to the literature on agency problems in politics include Robert Barro, The Control of Politicians: An Economic Model, 14 Pub Choice 19, 22-26 (1973) (explaining that in the absence of electoral consequences, a politician will seek to maximize his own utility),
60. and John Ferejohn, Incumbent Performance and Electoral Control, 50 Pub Choice 5, 5-26 (1986) (arguing that voters should pay more attention to actual performance than to campaign promises, and presenting a model by which to do so).
61. See Thomas Romer and Howard Rosenthal, Political Resource Allocation, Controlled Agendas, and the Status Quo, 33 Pub Choice 27, 27-28 (1978) ("When the setter has monopoly power, voters are forced to choose between the setter's proposal or the status quo or fallback position.").
62. Gautam Gowrisankaran, Matthew F. Mitchell, and Andrea Moro, Electoral Design and Voter Welfare from the U.S. Senate: Evidence from a Dynamic Selection Model, 11 Rev Econ Dynamics 1, 2 (2008);
63. Sanford C. Gordon, Gregory A. Huber, and Dimitri Landa, Challenger Entry and Voter Learning, 101 Am Polit Sci Rev 303 (2007);
64. Scott Ashworth and Ethan Bueno de Mesquita, Delivering the Goods: Legislative Particularism in Different Electoral and Institutional Settings, 68 J Pol 168, 169 (2006);
65. James Fearon, Electoral Accountability and the Control of Politicians: Selecting Good Types versus Sanctioning Poor Performance, in Adam Przeworski, Susan C. Stokes, and Bernard Manin, eds, Democracy, Accountability, and Representation 55, 82 (Cambridge 1999) (suggesting that, while elections serve both selection and sanctioning purposes, it may be more reasonable for voters to focus on using elections as a method of selecting good candidates rather than as a sanctioning mechanism);
66. John Zaller, Politicians as Prize Fighters: Electoral Selection and the Incumbency Advantage, in John G. Geer, ed, Politicians and Party Politics 125-86 (Johns Hopkins 1998).
67. Torsten Persson, Gerard Roland, and Guido Tabellini, Separation of Powers and Political Accountability, 112 Q J Econ 1163, 1166 (1997);
68. Paul Seabright, Accountability and Decentralisation in Government: An Incomplete Contracts Model, 40 Eur Econ Rev 61, 61-89 (1996);
69. David Austen-Smith and Jeffrey Banks, Electoral Accountability and Incumbency, in Peter C. Ordeshook, ed, Models of Strategic Choice in Politics 121, 122 (Michigan 1989);
70. Ferejohn, 50 Pub Choice at 22-23 (cited in note 32); Barro, 14 Pub Choice at 26-32 (cited in note 32).
71. Scott Ashworth and Ethan Bueno de Mesquita, Electoral Selection, Strategic Challenger Entry, and the Incumbency Advantage, 70 J Pol (forthcoming 2008);
72. Timothy Besley and Michael Smart, Fiscal Restraints and Voter Welfare, 9 J Pub Econ 755 (2007);
73. Timothy Besley, Principled Agents? The Political Economy of Good Government (Oxford 2006);
74. Scott Ashworth, Reputational Dynamics and Political Careers, 21 J L, Econ, & Org 441 (2005);
75. Brandice Canes-Wrone, Michael C. Herron, and Kenneth W. Shotts, Leadership and Pandering: A Theory of Executive Policymaking, 45 Am J Polit Sci 532 (2001);
76. Jeffrey S. Banks and Rangarjan Sundaram, Optimal Retention in Agency Problems, 82 J Econ Theory 293, 294 (1998).
77. See Besley and Coate, 1 J Eur Econ Assn at 1184-85 (cited in note 22) (explaining that direct elections will lead to more pro-consumer regulatory regimes); Besley and Coate, Issue Unbundling via Citizens' Initiatives (cited in noted 22).
78. Our own revisions and applications are presented in Berry and Gersen, Fiscal Consequences (cited in note 9).
79. For other work on elected versus appointed officials, see generally Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (The University of Chicago Law & Economics, Olin Working Paper No 357, Aug 2007) (using independence, productivity, and opinion quality to compare and evaluate appointed and elected judges);
80. Gregory A. Huber and Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 Am J Polit Sci 247 (2004) (evaluating the effects of elections on the behavior of trial judges in sentencing proceedings).
81. See Robert D. Cooter, The Strategic Constitution 158-61 (Princeton 2000). The logic of issue unbundling has been applied sporadically in other settings. For example, one paper provides empirical support for the issue unbundling argument by contrasting elected and appointed utility regulators. See Besley and Coate, 1 J Eur Econ Assn 1176 (cited in note 22). Using panel data for US states, they find that elected regulators systematically enact more consumer-friendly policies than appointed regulators.
82. See id at 1191. The unbundling intuition has also been used to explain one of the benefits of citizen initiatives. See John G. Matsusaka, Fiscal Effects of the Voter Initiative: Evidence from the Last 30 Years, 103 J Pol Econ 587, 590 (1995).
83. For an extension of the implications of the direct democracy argument for the executive branch, see John G. Matsusaka, Direct Democracy and the Executive Branch *23-24 (unpublished manuscript, 2007), available online at http://www-rcf.usc.edu/~matsusak/Papers/Matsusaka-DD-Executive-2007. pdf (visited Aug 29, 2008). By unbundling a single issue from a legislative logroll - be it budgetary or policy -voters are thought to be able to better ensure outcomes close to majoritarian preferences for the given policy dimension. Id at *24. This same theme is at play in the scattered assortment of justifications given for single-subject limitations in state constitutions, for instance in Colorado and Florida.
84. See Robert D. Cooter and Michael D. Gilbert, Chaos, Direct Democracy and the Single Subject Rule *11 (Berkeley Program in Law & Economics, Working Paper No 183, Feb 2006), online at http://repositories.cdlib. org/blewp/art183 (visited Aug 29, 2008);
85. Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U Pitt L Rev 803, 812-21 (2006) (setting forth the history of and principal justifications for the single-subject rule);
86. Martha J. Dragich, State Constitutional Restrictions on Legislative Procedure: Rethinking the Analysis of Original Purpose, Single Subject, and Clear Title Challenges, 38 Harv J on Legis 103, 114-16 (2001) (explaining the purpose of single-subject limitations in state constitutions). The single-subject limitation is supposed to preclude logrolls in which policies favored only by a minority of politicians or voters are enacted together. The logic of unbundling then is general, and we are agnostic about whether unbundling in any particular instance is good or bad. In the single-subject context, logrolls could easily be welfare enhancing so long as the value to the minority receiving benefits along each dimension is high enough. The point is merely that the idea of unbundling has been usefully applied in a handful of other legal and policy contexts.
87. Berry and Gersen, Fiscal Consequences at 6-7 (cited in note 9).
88. About three-quarters of local elections are nonpartisan. Brian F. Schaffner, Matthew Streb, and Gerald Wright, Teams without Uniforms: The Nonpartisan Ballot in State and Local Elections, 54 Polit Rsrch Q 7, 7 (2001),
89. quoting Victor S. DeSantis and Tari Renner, Contemporary Patterns and Trends in Municipal Government Structure, in The Municipal Year Book 1991 (ICMA 1991).
90. Any volume of the Book of the States contains multiple examples.
91. See, for example, 39 Book of the States 181 (Council of State Governments 2007) (providing an overview of selection methods for state administrative officials in the fifty states as well as in American Samoa, Guam, the Northern Mariana Islands, and the US Virgin Islands).
92. See generally Nolan McCarty, The Appointments Dilemma, 48 Am J Polit Sci 413 (2004) (developing a model that demonstrates the problems arising from a system that divides appointments from responsibility);
93. David C. Nixon, Separation of Powers and Appointee Ideology, 20 J L, Econ, & Org 438 (2001);
94. Timothy P. Nokken and Brian R. Sala, Confirmation Dynamics: A Model of Presidential Appointments to Independent Agencies, 12 J Theoretical Polit 91 (2000) (presenting an agenda control model to explain how a president may capture an independent agency through appointments or how the Senate may prevent the president from doing so);
95. Susan K. Snyder and Barry R. Weingast, The American System of Shared Powers: The President, Congress, and the NLRB, 16 J L, Econ, & Org 269 (2000) (applying a model to NLRB appointments and finding that both the president and the Senate influence board policy);
96. Nolan McCarty and Rose Razaghian, Advice and Consent: Senate Responses to Executive Branch Nominations 1885-1996, 43 Am J Polit Sci 1122 (1999) ("[I]nefficiency arises because the executive chooses an agent whose preferences diverge too much from those of the legislature. The legislature then responds by reducing the resources available to the agency.").
97. See Persson, Roland, and Tabellini, 112 Q J Econ at 1167 (cited in note 35) ("Direct control by the voters keeps the executive more accountable, as it minimizes the danger of collusion between the legislature and the executive over reappointment of the latter.").
98. The most comprehensive survey of the impact of state political and legal institutions on politics and policy is Timothy Besley and Anne Case, Political Institutions and Policy Choices: Evidence from the United States, 41 J Econ Lit 7 (2003).
99. See, for example, Alessandro Lizzeri and Nocola Pérsico, The Provision of Public Goods under Alternative Electoral Incentives, 91 Am Econ Rev 225 (2001) (assessing the effects of different electoral systems on the provision of public goods);
100. James M. Poterba, Budget Institutions and Fiscal Policy in the U.S. States, 86 Am Econ Rev 395 (1996);
101. Timothy Besley and Anne Case, Does Electoral Accountability Affect Economic Policy Choices? Evidence from Gubernatorial Term Limits, 110 Q J Econ 769 (1995);
102. Rigard G. Niemi, Harold W. Stanley, and Ronald J. Vogel, State Economies and State Taxes: Do Voters Hold Governors Accountable?, 39 Am J Polit Sci 936 (1995) (finding that a poor state economy, an increase in taxes, and poor personal finances cause voters to vote against incumbents);
103. James E. Alt and Robert C. Lowry, Divided Government, Fiscal Institutions, and Budget Deficits: Evidence from the States, 88 Am Polit Sci Rev 811 (1994) (discussing the effects of partisan division of power on state budgets);
104. James M. Poterba, State Responses to Fiscal Crises: The Effects of Budgetary Institutions and Politics, 102 J Polit Econ 799 (1994) (suggesting that state fiscal institutions and political environments affect state budget deficits);
105. John E. Chubb, Institutions, the Economy, and the Dynamics of State Elections, 82 Am Polit Sci Rev 133 (1988) (evaluating the electoral consequences of increasing institutionalization and importance of state governments).
106. See also G. Bingham Powell, Jr. and Guy D. Whitten, A Cross-national Analysis of Economic Voting: Taking Account of the Political Context, 37 Am J Polit Sci 391 (1993);
107. Arend Lijphart, The Political Consequences of Electoral Laws, 1945-85, 84 Am Polit Sci Rev 481 (1990) (evaluating the effects of electoral systems on proportionality and multipartism across countries with different types of electoral systems).
108. See generally Berry and Gersen, Fiscal Consequences (cited in note 9).
109. Compare Timothy Besley and Stephen Coate, An Economic Model of Representative Democracy, 112 Q J Econ 85 (1997).
110. See also Eric Maskin and Jean Tirole, The Politician and the Judge: Accountability in Government, 94 Am Econ Rev 1034, 1035-37 (2004) (comparing decisions in direct democracy, representative democracy, and judicial settings and assessing the role of accountability).
111. Karl Loewenstein, The Governance of Rome 48-51 (Martinus Nijhoff 1973).
112. A.H. Angelo, Andorra: Introduction to a Customary Legal System, 14 Am J Legal Hist 95, 98 (1970).
113. Lessig and Sunstein, 94 Colum L Rev at 2 (cited in note 18).
114. See Calabresi and Prakash, 104 Yale L J at 602 (cited in note 18). Although Calabresi and Prakash are focused on the question of executive unitariness rather than singularity, many of these same ideas were levied against plural executives. The application to unitariness is probably the extension rather than vice versa.
115. Federalist 70 (Hamilton), in The Federalist 471, 476 (cited in note 5).
116. See, for example, Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 111 L Rev 701, 732 (arguing that, at the time of the founding, people understood that the president had power over the execution of all laws, including control over others who were responsible for execution);
117. Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive during the First Half-century, 47 Case W Res L Rev 1451, 1487 (1997).
118. Contrast Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 S Ct Rev 201, 207-36, 242-43 (clarifying the distinction between overlapping, concurrent, and exclusive agency authority in the context of administrative law).
119. Speech of James Wilson, Pennsylvania Ratifying Convention (Dec 4, 1787), in Kurland and Lerner, eds, 3 The Founders' Constitution at 501 (cited in note 2).
120. See Eric A. Posner and Adrian Vermeule, Terror in the Balance 16 (Oxford 2007) ("The real cause of deference to government in times of emergency is institutional: both Congress and the judiciary defer to the executive during emergencies because of the executive's institutional advantages in speed, secrecy and decisiveness.").
121. See Saikrishna B. Prakash and Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L J 231, 252-62 (2001) (emphasizing the importance of singularity or one voice in the domain of foreign affairs).
122. See Max Farrand, ed, 1 Records of the Federal Convention of 1787 64-65 (Yale rev ed 1966) (Madison, June 1) ("Mr. Pinkney [sic] was for a vigorous Executive but was afraid the Executive powers of (the existing) Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.").
123. See, for example, William Symmes, Letter to Capt Peter Osgood, Jr., in Herberg J. Storing, ed, 4 The Complete Anti-Federalist 60 (Chicago 1981) (acknowledging that an independent executive is necessary but questioning whether the power should be vested in a single person). See also Calabresi and Prakash, 104 Yale L J at 604-06 (cited in note 18) (arguing that the mention of "Heads of Departments" or "principal officers" referred to actors within the executive branch).
124. Calabresi and Prakash, 104 Yale L J at 639 (cited in note 18) ("The Framers wished to construct a unitary Executive since they felt it was conducive to energy, dispatch, and responsibility.").
125. Federalist 37 (Madison), in The Federalist 231, 233 (cited in note 5).
126. Federalist 70 (Hamilton), in The Federalist 471, 471 (cited in note 5).
127. Id at 472-73 (arguing that subjecting the executive, "in whole or in part, to the control and co-operation of others" would undermine the executive's status as a co-equal branch with the legislature).
128. See Farrand, 1 The Records of the Federal Convention at 66 (Madison, June 1) (cited in note 57) ("Mr. Randolph strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy."). On the other hand, there was skepticism about growth of authority of a plural executive as well. See id at 74 (Pierce, June 2) ("Mr. Wilson said that in his opinion so far from a unity of the Executive tending to progress towards a monarchy it would be the circumstance to prevent it. A plurality in the Executive of Government would probably produce a tyranny as bad as the thirty Tyrants of Athens, or as the Decemvirs of Rome.").
129. See Lessig and Sunstein, 94 Colum L Rev at 2 (cited in note 18) ("A strongly unitary executive can promote important values of accountability, coordination, and uniformity in the execution of laws, and to whatever extent these were the framers' values, they are certainly now ours.").
130. See Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation 11 (Harvard 1993) (describing tunnel vision as "a classic administrative disease [that] arises when an agency so organizes or subdivides its tasks that each employee's individual conscientious performance effectively carries single-minded pursuit of a single goal too far, to the point where it brings about more harm than good").
131. See Morrison v Olson, 487 US 654, 659-60 (1988).
132. See Mistretta v United States, 488 US 361, 409 (1989) (sentencing commissioners);
133. Wiener v United States, 357 US 349, 356 (1958) (War Claims Commission).
134. See also Humphrey's Executor v United States, 295 US 602, 629 (1935) (concluding that the president does not have unlimited removal power over individuals who serve in a quasi-legislative or quasi-judicial position).
135. But see Myers v United States, 272 US 52, 176 (1926) (holding that the president's right to remove officers who he appointed with the advice and consent of the Senate cannot be restricted by Congress).
136. See generally Ricardo Alonso, Wouter Dessein, and Niko Matouschek, When Does Coordination Require Centralization?, 98 Am Econ Rev 145 (2008).
137. The Supreme Court has said that Congress may not restrict the president's ability to remove purely executive officers. See Myers, 272 US at 176. Congress may not reserve for itself the authority to remove an executive officer by means other than impeachment. It is also apparently impermissible for Congress to specify a list of potential nominees from which the president may choose. It is not clear that no variant of this arrangement would be constitutional. However, the list method in combination with other features of the appointment and authority scheme was rejected in Hechinger v Metropolitan Washington Airports Authority, 36 F3d 97, 104 (DC Cir 1994) (explaining that there is a difference between Congress maintaining an influential role over agencies and creating a structural relationship that allows Congress to coerce the agency).
138. The Supreme Court rejected a similar scheme in Metropolitan Washington Airports Authority v Citizens for the Abatement of Aircraft Noise, Inc. See 501 US 252 (1991) (calling the scheme an "impermissible encroachment").
139. See generally Jack M. Beermann, Congressional Administration, 43 San Diego L Rev 61 (2006). But this default appointment and removal scheme does not begin to constitute the full range of possibilities, either theoretically or empirically. Suppose Congress was given the authority to appoint members of the president's cabinet or other agency heads. Alternatively, suppose the legislature was given no role in the appointment of these officials; either the president might select unilaterally or the nominee might be subject to confirmation by another political institution, perhaps a nonpartisan board or commission.
140. See, for example, Terry Eastland, Energy in the Executive: The Case for the Strong Executive 2 (Free Press 1992).
141. But see, for example, Michael Fitts, The Paradox of Power in the Modern State, 144 U Pa L Rev 827, 892 (1996) (critiquing some of the rationale for supporting a strong unitary executive and explaining how a strong unitary executive structure creates political challenges for the president); Flaherty, 105 Yale L J at 1821 (cited in note 18) (discussing the evolution of the separation of powers doctrine throughout US history and explaining how the result of this shift has given extensive powers to the executive).
142. See Lessig and Sunstein, 94 Colum L Rev at 8 (cited in note 18).
143. Id at 8-9.
144. See, for example, Calabresi and Prakash, 104 Yale L J at 599 (cited in note 18).
145. One could also hold originalist interpretive sympathies on pragmatic grounds. See generally, for example, John O. McGinnis and Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw U L Rev 383 (2007).
146. See, for example, Lessig and Sunstein, 94 Colum L Rev at 3 (cited in note 18) (explaining that although the Constitution does not require it, there is a nonhistorical argument for a strong unitary executive); Flaherty, 105 Yale L J at 1811 (cited in note 18).
147. See generally Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich L Rev 53 (2008) (arguing that a single executive does not always represent voter preferences better than an independent agency because the policy position of the executive favors some voters over others).
148. See generally Marshall J. Breger and Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin L Rev 1111 (2000) (surveying the evolution of growing acquiescence to independent agencies among weak unitarians).
149. Consider Edward Rubin, The Myth of Accountability and the Anti-administrative Impulse, 103 Mich L Rev 2073, 2119-20 (2005) (critiquing arguments that accountability is most effective in direct election or delegation to local institutions and instead suggesting that accountability is most effective in a structure of administrative bureaucracy).
150. See generally, for example, Arend Liphart, Patterns of Democracy (Yale 1999).
151. The concentration versus dispersion theme also has close parallels in work on redundancy in bureaucratic organizations. See Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Cal L Rev 1655, 1676-79 (2006) (setting forth a list of benefits of redundancy and applying this benefits analysis to the context of administrative agencies).
152. See Posner and Vermeule, Terror in the Balance at 16 (cited in note 55).
153. See Flaherty, 105 Yale L J at 1776-77 (cited in note 18) (disputing a strict formalist interpretation of separation of powers, as presented by Calabresi and Prakash, and concluding that at the time of the founding, "'separation of powers' and related terminology were malleable").
154. See generally Torsten Persson and Guido Tabellini, The Economic Effects of Constitutions (MIT 2003);
155. Persson and Tabellini, Political Economics: Explaining Economic Policy (cited in note 27).
156. See, for example, Thomas R. Dye, Executive Power and Public Policy in the States, 22 W Polit Q 926, 932 (1969) (exploring the relationship between executive "fragmentation" and public policy at the state level).
157. See generally Lijphart, Patterns of Democracy (cited in note 79);
158. Alberto Alesina and Nouriel Roubini, with Gerald D. Cohen, Political Cycles and the Macroeconomy (MIT 1997) (discussing "how the timing of elections, the ideological orientation of governments, and competition among political parties influences unemployment, economic growth, inflation, and various monetary and fiscal policy instruments");
159. Roger Myerson, Theoretical Comparison of Electoral Systems, 43 Eur Econ Rev 671 (1999);
160. Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge 1992);
161. G. Bingham Powell, Jr., Contemporary Democracies: Participation, Stability and Violence (Harvard 1982).
162. See Torsten Persson, Do Political Institutions Shape Economic Policy?, 70 Econometrica 883, 902-03 (2002);
163. Alessandro Lizaeri and Nicola Pérsico, The Provision of Public Goods under Alternative Electoral Incentives, 91 Am Econ Rev 225, 226 (2001) (assessing targetability and efficiency in the distribution of public goods in competing electoral systems);
164. Rolf R. Strauch and Jürgen von Hagen, eds, Institutions, Politics and Fiscal Policy (Kluwer 2000);
165. Allen Drazen, Political Economy in Macroeconomics 21-22 (Princeton 2000);
166. Torsten Persson, Gerard Roland, and Guido Tabellini, Comparative Politics and Public Finance, 108 J Polit Econ 1121, 1122, 1152 (2000) (finding that parliamentary regimes result in larger government as compared to presidentialcongressional regimes);
167. Dani Rodrik, Why Do More Open Economies Have Bigger Governments?, 106 J Polit Econ 997, 998 (1998) (finding a positive and robust correlation between openness in trading and government expenditure).
168. See generally Adrian Vermeule, Selection Effects in Constitutional Law, 91 Va L Rev 953 (2005) (discussing how different constitutional rules generate incentives for good or bad actors to enter government).
169. See Fearon, Electoral Accountability, in Przeworski, Stokes, and Manin, eds, Democracy, Accountability, and Representation 55, 56 (cited in note 34). In political science, it has now become the norm to emphasize selection effects of elections. We focus on both types of effects with respect to executive officials as both seem crucial for any sensible regime of executive structure.
170. In fact, it seems likely the constraint of only selecting one executive has created an artificial tradeoff between policy dimensions like these. The unbundled executive regime would reduce some of these necessary tradeoffs, likely producing more effective military executives and more effective domestic policy executives, or so we argue.
171. Virtually all modern separation of powers cases are the result of a consensual bargain between the president and Congress. The cases challenge statutes passed by Congress and signed by the president. Characterizing most of these as power grabs by the legislature or the president is awkward since both institutions consented. This is not to say that such arrangements are or ought to be permitted by the Constitution. But it is important to bear in mind that the unpermitted arrangements are generally supported by Congress and the executive.
172. 478 US 714, 736 (1986) (holding that the Balanced Budget and Emergency Deficit Control Act of 1985 violated the separation of powers doctrine because the Comptroller General was responsible for the execution of the laws but was removable only by Congress).
173. 462 US 919, 951-59 (1983) (holding that one house of Congress striking down an act by an executive official was inconsistent with the separation of powers doctrine).
174. Presumably, these agreements make both branches better off, and therefore preventing them may be worse for both institutions. However, that is also the case anytime the courts strike down an otherwise valid statute on separation of powers grounds.
175. US Const Art I, § 7.
176. See, for example, Rule XVII, Standing Rules of the Senate, 110th Cong, 1st Sess (Sept 14, 2007), online at http://rules.senate.gov/senaterules/ Rules091407.pdf (visited Aug 29, 2008) (setting forth procedure for assigning matters to the appropriate committee); Rule XII(2)(a), Rules of the House of Representatives, 110th Cong, 1st Sess (Mar 11, 2008), online at http://www.rules.house.gov/ruleprec/110th.pdf (visited Aug 29, 2008) (stipulating that each matter be referred to the committee with responsibility for that subject).
177. The single-subject limitation is supposed to preclude logrolls in which policies favored only by a minority of politicians or voters are enacted together. See Gilbert, 67 U Pitt L Rev at 813-15 (cited in note 38) (discussing logrolling as "the principal evil that single subject rules seek to check"); Dragich, 38 Harv J on Legis at 114-16 (cited in note 38) (explaining and describing the purpose and objective of single-subject rules).
178. See Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2282-346 (2001) (documenting and defending the extensive mechanisms by which presidents exert control over administrative agencies).
179. See also Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum L Rev 1749, 1763-65 (2007);
180. Nicholas Bagley and Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum L Rev 1260, 1312-14 (2006) (disputing the emerging consensus in the administrative law literature that OMB review is simply one more neutral tool that the president can use to further her administration's agenda).
181. But see Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel before a New President Arrives, 78 NYU L Rev 557, 604 (2003) (arguing that policies may be less majoritarian if old presidents can entrench policies);
182. Edward L. Rubin, Getting Past Democracy, 149 U Pa L Rev 711, 758 (2001) ("[M]any observers tend to over-estimate the significance of elections").
183. But see generally Stephenson, 107 Mich L Rev 53 (cited in note 76) (suggesting that executive control may favor voters with some policy preferences).
184. See Breyer, Breaking the Vicious Circle at 11 (cited in note 65).
185. See Bagley and Revesz, 106 Colum L Rev at 1304-10 (cited in note 97) (concluding that the role of OIRA in the administrative state cannot be justified by reference to the checking function that has been its hallmark since its inception).
186. See Gersen, 2006 S Ct Rev at 202-03 (cited in note 53).
187. Id at 208 (arguing that Congress might intentionally generate exclusive or concurrent agency jurisdiction to encourage or discourage agencies from regulating in new policy domains).
188. See Chevron USA., Inc v NRDC, 467 US 837, 844 (1984) (requiring courts to give "considerable weight" to agency interpretations of statutes in the event that Congress has expressly delegated regulatory authority).
189. For a more elaborate discussion, see generally Jacob E. Gersen and Adrian Vermeule, Chevron As a Voting Rule, 116 Yale L J 676 (2007).
190. There is empirical evidence to support the supposition that participation is selective in unbundled elections. For example, Terry Moe has shown that teachers' union members are up to seven times more likely to participate in school board elections than the average registered voter. See Terry M. Moe, Political Control and the Power of the Agent, 22 J L, Econ, & Org 1, 22 (2006).
191. Consider Eric A. Posner and Adrian Vermeule, Accommodating Emergencies, 56 Stan L Rev 605 (2003) (criticizing two major arguments that oppose judicial deference to the executive during times of emergency);
192. Bruce Ackerman, The Emergency Constitution, 113 Yale L J 1029 (2004) (proposing guidelines that could be incorporated into a statute to govern division of powers during an emergency);
193. Adrian Vermeule, Self-defeating Proposals: Ackerman on Emergency Powers, 75 Fordham L Rev 631 (2006) (critiquing Ackerman's proposed statute to adjust the allocation of power during emergencies);
194. Eric A. Posner and Adrian Vermeule, Emergencies and Democratic Failure, 92 Va L Rev 1091 (2006) (considering the relationship between democratic failure and emergencies and concluding that democratic failure is not more likely in times of emergency than in other times).
195. See Marshall, 115 Yale L J at 2468 (cited in note 8) (noting the success of the divided executive in state governments).
196. See generally Dye, 22 W Polit Q 926 (cited in note 84) (exploring the connection between institutional structure and public policy in state governments).