The fatally flawed theory of the unbundled executive

Minnesota Law Review

Volumn 93, Issue 5, 2009, Pages 1696-1740

  Calabresi, Steven G ^a   Terrell, Nicholas ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 68249146167     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (213)

1. See U.S. CONST. art. II, § l, cl. l; AKHIL REED AMAR, AMERICA'S CONSTITUTION 131-32 (2005); STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE 30-38 (2008); Steven G. Calabresi & Saikrishna B. Pra-kash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 610-11 (1994); Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995) [hereinafter Calabresi, Some Normative Arguments]; Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1179 (1992); Steven G. Calabresi, The Virtues of Presidential Government: Why Professor Ackerman Is Wrong to Prefer the German to the U.S. Constitution, 18 CONST. COMMENT. 51, 52-53 (2001) [hereinafter Calabresi, The Virtues of Presidential Government].
2. See THE FEDERALIST NO. 70, at 398 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[T]he executive power is more easily confined when it is one: that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the executive is rather dangerous than friendly to liberty.").
3. See CHARLES C. THACH, JR., THE CREATION OF THE PRESIDENCY 1775-1789, at 28-29, 57, 62-65 (1923).
4. See id. at 76-139.
5. Even those states with executive councils elect one clear governor as head of the executive branch. See MASS. CONST, pt. 2, ch. II, § 1, arts. I, IV; N.H. CONST. pt. 2, arts. 41, 60; N.C. CONST. art III, §§ 1, 8; Frederick Liu, The Constitutional Evolution of the State Executive 11 (May 19, 2008) (unpublished manuscript, on file with author).
6. Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385 (2008).
7. We are skeptical of the claims of inherent executive power put forth by the Bush administration, but think that much, although not all of what it did in waging the war on terror was authorized by Congress when it passed the post 9/11 Authorization for the Use of Military Force. See Pub. L. No. 107-40, 115 Stat. 224 (2001).
8. Berry & Gersen, supra note 6, at 1403.
9. Id. at 1399-401.
10. Id. at 1403-04.
11. Id. at 1405.
12. Id. at 1396 ("Some unbundling of executive authority should reduce slack, making policy more democratic").
13. Id. at 1409-10.
14. Id. at 1415-16.
15. Id. at 1414.
16. Id. at 1408-09.
17. Id. at 1423.
18. Id. at 1395.
19. Id.
20. Christopher R. Berry & Jacob E. Gersen, The Fiscal Consequences of Electoral Institutions 24-25 (Univ. of Chi. Law & Econ., Olin Working Paper No. 344, 2007), available at http://ssrn.com/abstract=996445.
21. For arguments in favor of the unitary executive, see Professor Cala-bresi's prior writings cited supra note 1. For arguments against, see Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996); Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123 (1994); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
22. Berry & Gersen, supra note 6, at 1386 ("Unfortunately, this early confusion has been replicated over and over in more recent debates about the unitary executive and the scope of executive authority."); id. at 1409 ("Serving the interests of uniformity is sometimes said to require a single executive, a unitary executive, or both."); id. at 1413 ("[T]here is much overlap between the justification for a unitary executive and justifications for a single executive."); id. at 1429 ("And to the extent the current constitutional structure would allow for modest adjustments toward the unbundled executive ideal, our work suggests such reforms would produce a government structure more in keeping with the democratic ideals most commonly said to justify the single unitary executive.").
23. See Calabresi, Some Normative Arguments, supra note 1, at 81-86.
24. See Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 172 (1984) (stating that the "fire alarm" approach to agency oversight taken by congressional committees advantages special-interest groups); Barry R. Wein-gast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132, 151 (1988) (finding that members of congressional committees have special-interest-group ratings statistically distinct from those of Congress as a whole).
25. See Rod Hague, The United States, in POWER AND POLICY IN LIBERAL DEMOCRACIES 95, 102 (Martin Harrop ed., 1992) ("Though nominally subordinate to the President, the federal administration has permanent interests of its own.").
26. See JEAN REITH SCHROEDEL, CONGRESS, THE PRESIDENT, AND POLICYMAKING 85-86 (1994) (analyzing the extent of congressional committee power).
27. See Calabresi & Prakash, supra note 1, at 579-81.
28. See Malcolm L. Cross, Washington, Hamilton, and the Establishment of the Dignified and Efficient Presidency, in GEORGE WASHINGTON AND THE AMERICAN PRESIDENCY 95, 102 (Mark J. Rozell et al. eds., 2000) (noting that the Constitution does not allow the President to appoint officials, but only to nominate them with the advice and consent of the Senate).
29. See THOMAS P. MURPHY, THE POLITICS OF CONGRESSIONAL COMMITTEES 13 (1978).
30. See SCOTT A. FRISCH & SEAN Q. KELLY, COMMITTEE ASSIGNMENT POLITICS IN THE U.S. HOUSE OF REPRESENTATIVES 114 (2006) ("When district interests are narrow and the policy jurisdiction of the committee neatly maps onto those interests, members will be drawn to those committees.").
31. See Weingast & Marshall, supra note 24, at 149-51.
32. As previously noted by Professor Calabresi, the electorate has clearly demonstrated its understanding of the unparalleled importance of the President in our system-with voter turnout substantially higher in presidential elections than in midterm elections. Steven G. Calabresi & James Lindgren, The President: Lightning Rod or King?, 115 YALE L.J. 2611, 2619 (2006). Twenty-first-century-Americans think and act as if the presidential choice is of central importance, but we doubt that more than a handful of voters know who is on the membership of the various oversight committees or how to lobby them. This greater public scrutiny ensures the President a more national perspective, which would be diluted by adding coexecutives.
33. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLAL. REV. 1217, 1221-23 (2006).
34. Id.
35. Professor Calabresi is currently working with Alejandro Aixala on a paper responding to Professor Nzelibe, which greatly elaborates on this point.
36. See Calabresi, Some Normative Arguments, supra note 1, at 96.
37. Some control by median members of Congress may occur in debates on appropriations bills and riders, but this is the exception, not the rule. Most of the control that Congress exercises over the bureaucracy is exercised by the committee chairs, not the median members. See Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765, 790 (1983).
38. For a description of the constitutional origins of the congressional committees and the role of the Incompatibility Clause in creating them, see Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1090 (1994).
39. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 422-23 (1987).
40. See id. at 424, 429; see also Morrison v. Olson, 487 U.S. 654, 687 (1988) (explaining that the Federal Trade Commission acts independently of executive control).
41. See Sunstein, supra note 39, at 422.
42. See, e.g., WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); GORDON TULLOCK, THE POLITICS OF BUREAUCRACY (1965); Terry M. Moe, The New Economics of Organization, 28 AM. J. POL. SCI. 739 (1984).
43. Nzelibe, supra note 33, at 1260.
44. See STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS 48-49 (2007).
45. Two more points about the current debate over the unitary executive bear mentioning in light of Professor Kitrosser's paper for this panel. See Heidi Kitrosser, The Accountable Executive, 93 MINN. L. REV. 1741 (2009). First, Congress seems to have delegated a lot of broad rule-making power that is almost lawmaking power to executive branch subordinates. Kitrosser worries rightly about the unitary executive in this context. Id. at 1761-69. We think some of the delegations Congress has made run afoul of the nondelegation doctrine and ought to be struck down by the courts on that ground. The courts should force Congress to make decisions and not pass the buck to executive entities, which it then tries to control through the back door via the committee chairs. When Congress does this, it effectually delegates power to its own members-the committee chairs-which is highly problematic on separation of powers grounds. Right now, Congress has an incentive to delegate broad power to nominally executive branch or independent agencies which it can then control behind the scenes. Under the theory of the unitary executive, Congress would lose its current incentive to delegate and would acquire an incentive to write laws more precisely so the courts could hold the unitary executive to the words of statutes. It is fair to say the theory of the unitary executive would create a better incentive structure for Congress than does the current constitutional structure. Second, Professor Kitrosser makes much of the fact that the unitary executive is built on the idea that the President can act secretly, and thus energetically, and that this secrecy undermines unitarian claims to foster accountability. Id. at 1741-42. This is a fair point, and we do not have or purport to have a theory of how far secrecy in the form of executive privilege or otherwise ought to prevail. It is simply a question we have not yet worked through. It may well be the case, as Kitrosser argues, that we should have a lot less secrecy and a lot more transparency in the executive branch than we have had under President George W. Bush. Id. at 1743-45. We do not claim to have a position on that question, and as originalist interpreters of the Constitution, we are not at all sure of the constitutional foundations for any claims of executive privilege. It is arguable that the explicit provision of a Speech and Debate Clause, providing protection and sometimes secrecy for congressional deliberations, implies that the absence of a similar executive privilege clause in Article II is telling. See U.S. CONST. art. 1, § 6. One should not think that to the extent secrecy in government is a concern, there is almost total secrecy about the communications made in the oversight process from the committee chairs and their staffs to the bureaucracy. It is at least as important that those communications be on the record and public as that communications from the Office of Management and Budget be public and on the record. All those who denounce the unitary executive for being secretive might want to look at the veil of total secrecy in which congressional committee communications to the bureaucracy are made.
46. ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 265 (1957) ("[T]ime is the principal cost of voting: time to register, to discover what parties are running, to deliberate, to go to the polls, and to mark the ballot.").
47. Id. at 266.
48. ANDREW HINDMOOR, RATIONAL CHOICE 170 (2006).
49. See DOWNS, supra note 46, at 218.
50. Id. at 244, 265.
51. Id. at 226-27, 262.
52. Id. at 258-59, 265-66.
53. DENNIS C. MUELLER, PUBLIC CHOICE III, at 305 (2003) ("Several people have noted that the probability of being run over by a car going to or returning from the polls is similar to the probability of casting the decisive vote.").
54. See DOWNS, supra note 46, at 260.
55. Thus, the low value of votes and the high cost of getting accurate information about candidates lead to high levels of voter ignorance. This is offset to some extent by the entertainment value some voters receive by following politics or watching debates, but relatively few Americans invest much time in really learning about candidates for public office because it would not be rational for them to do so. See id. at 274.
56. Id.
57. See Donald E. Stokes, Spatial Models of Party Competition, 57 AM. POL. SCI. REV. 368, 373 (1963) (describing position issues and valence issues).
58. Id.
59. MUELLER, supra note 53, at 240.
60. If the policy dimensions of coexecutives are perfectly distinct among the, say, three coexecutives, the additional information costs of the coexecutive structure over the unitary executive structure are trivial. But, if the three coexecutives each possess the whole of the executive power as in an executive council, the information costs of learning about policy positions of candidates would be a multiple of the presidential system costs. Thus, if there were seven members of an executive council, for example, all with an equal policy dimension, the costs of gathering information about policy positions for any equivalent level of information would be roughly seven times those incurred in electing just one executive. The additional cost of gathering information about policy positions in any real-world coexecutive system would thus depend critically on how airtight the division of authority turns out in reality among the various coexecutives.
61. The cost of forming an opinion on the character and abilities of four candidates is thus approximately double the cost of similarly evaluating two. Alternatively, a voter could, and probably would, spend the same amount of time and effort judging four candidates half as well as judging two candidates.
62. If more information is likely to have little influence on a voter's vote, it naturally has little value to him. A dyed-in-the-wool partisan gets no value from candidate information in the general election because it will not change his vote. See DOWNS, supra note 46, at 243.
63. MUELLER, supra note 53, at 305. Similarly, the value of information to a voter goes up as the probability increases that the voter in question can have an effect on the outcome of the election. In national elections, the probability that any given individual voter will decide the election is staggeringly low because of the millions of votes cast. Id.
64. Id. at 240-41. To this might be added, as we mentioned above, the entertainment value that comes from knowing more about current events or watching campaign speeches, debates, and commercials, which will be unaffected by the structure of the executive branch.
65. Stokes, supra note 57, at 373 (noting the tendency of political analysis to attempt rationalization of valence-issue effects as position-issue effects). A reduction in value of character information might even be said to be an advantage of the Berry-Gersen unbundled executive, as voters substitute relatively higher-value position-issue information for character-issue information.
66. Id. (discussing the importance of valence issues in presidential elections); see also WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM 239-41 (1988) (examining historical election results to show that adding or shifting salient policy dimensions simply results in a change in the winning party).
67. See supra note 64 and accompanying text.
68. Berry & Gersen, supra note 6, at 1404.
69. First, assume as Berry and Gersen do that the policy dimensions are distinct with no overlap of authority between coexecutives. See id. at 1409. Each election deals with distinct policy issues. If this is the case, the candidates are competing in an environment where only one policy choice is at stake. The Hotelling-Downs model of candidate competition suggests that in such situations, both candidates will move toward the median voter. MUELLER, supra note 53, at 231-32. As the positions of the candidates become more alike, the expected value to the voter of either candidate winning the election goes down because the differences between their platforms are less striking. The election becomes a choice between Tweedle Dum and Tweedle Dee. Therefore, the expected value of information about that election to the voter will be far lower than it would be with two candidates competing across all policy issues in a unitary executive presidential election because there will be virtually no difference between the coexecutive candidates. Second, assume the policy dimensions do overlap to some degree. In that case, the candidates will be offering policy positions in multiple dimensions that may conflict with the policy positions of other coexecutives. Even the victorious candidate cannot guarantee a policy will be enacted, as it will depend upon the results of other elections. This is a version of the stalemate that often occurs between the President and Congress. The net result is a lower value to the voter of his preferred candidate winning any particular coexecutive election, both in absolute terms and relative to the coexecutive's share of executive power.
70. See, e.g., Rick Pearson & Ray Gibson, Blagojevich, Ryan Spent Record Sum, CHI. TRIB., Feb. 3, 2003, § 2, at 1 (explaining how the winning gubernatorial candidate spent more than twice as much as the winning candidate for attorney general).
71. SEE MARY MARGARET CONWAY, POLITICAL PARTICIPATION IN THE UNITED STATES 123-34 (1985).
72. Berry & Gersen, supra note 6, at 1399.
73. See Liu, supra note 5, at 21-22. The remaining states are Indiana, Nevada, New Hampshire, North Carolina, Rhode Island, and Vermont.
74. See Richard S. Childs, Politics Without Politicians, in SHORT BALLOT 11, 12-13 (Edna D. Bullock ed., 1915); William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2452 (2006). Unbundling in the states was part of a larger trend toward populism and against elitism in government. See Stephen C. Erickson, The Entrenching of Incumbency: Reelections in the U.S. House of Representatives, 1790-1994, 14 CATO J. 397, 404-06 (1995).
75. THE NAT'L SHORT BALLOT ORG., THE SHORT BALLOT: A MOVEMENT TO SIMPLIFY POLITICS 1-7, 29 (1916); Short Ballot-What It Is-Its Progress to Date, in SHORT BALLOT, supra note 74, at 54, 61.
76. The Short Ballot Principle, KY. L.J., Apr. 1913, at 16, 16.
77. RICHARD S. CHILDS, SHORT-BALLOT PRINCIPLES 115-16 (1911). See generally Liu, supra note 5.
78. The same point applies to Professor Kitrosser's endorsement of independent regulatory agencies subject to congressional committee oversight. See Kitrosser, supra note 45, at 1752-54. The public has no clue what these agencies are, what their jurisdiction is, who sits on the commissions that run them, or which members of Congress provide oversight through which congressional committees. Professor Kitrosser argues that "accountability is best furthered not by occasional, winner-take-all elections, but by the complex chains of authority and expertise that characterize bureaucracies." Id. at 1750. We disagree, given that in reality, the complex chain is being pulled by a congressional committee chair who is accountable only to the voters of one congressional district out of 435 or to the voters of just one state.
79. See Calabresi, The Virtues of Presidential Government, supra note 1, at 58-59 (highlighting the ways in which unbundled electoral choice at the district, state, and national level empowers voters to express nuanced policy preferences).
80. See Berry & Gersen, supra note 6, at 1387 (noting the costs associated with unbundling).
81. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 395.
82. See id. (noting that public accountability depends on the ability of voters to easily and clearly discover political misconduct).
83. Berry & Gersen, supra note 6, at 1403 (acknowledging the need for clarity as to which officials are responsible for particular policies).
84. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 395-98.
85. See Berry & Gersen, supra note 6, at 1406 (suggesting a scenario wherein the electorate could vote to remove a Secretary of Defense from office without voting out the President).
86. See Kenneth N. Bickers & Robert M. Stein, The Electoral Dynamics of the Federal Pork Barrel, 40 AM. J. POL. SCI. 1300, 1323 (1996) (concluding that the provision of benefits increases chances of reelection to Congress); Erickson, supra note 74, at 412 (discussing the advantage of resources for congressional incumbents).
87. Fred S. McChesney, Rent Seeking and Rent Extraction, in THE ELGAR COMPANION TO PUBLIC CHOICE 382-86 (William F. Shughart II & Laura Raz-zolini eds., 2001) (noting the use of "milker bills, " which are submitted for the sole purpose of "milking" payments from interest groups).
88. Unlike the patronage advantage, in which coexecutives must compete against each other, the special-interest advantage benefits all coexecutives. Once a special interest has invested in securing some benefit, it falls into a trap from which it cannot escape. A second coexecutive can extract much of the remaining value to the special-interest group by threatening to block the policy. This is essentially the transitional gains trap argument developed by Gordon Tullock. See Gordon Tullock, The Transitional Gains Trap, 6 BELL J. ECON. 671 (1975).
89. See Nzelibe, supra note 33, at 1242-43 (noting the incentives for politicians to exploit political capital in the private sphere).
90. See Timothy Groseclose & Keith Krehbiel, Golden Parachutes, Rubber Checks, and Strategic Retirements from the 102d House, 38 AM. J. POL. SCI. 75, 94-95 (1994) (finding that financial incentives had a strong effect on retirement decisions of politicians); Nzelibe, supra note 33, at 1242-43.
91. See MELVIN J. HlNICH & MICHAEL C. MUNGER, ANALYTICAL POLITICS 127-28 (1997).
92. See THE FEDERALIST NO. 33 (Alexander Hamilton), supra note 2 (discussing the inherency of the powers expressly stated in the Necessary and Proper Clause); Oliver E. Williamson, Transaction-Cost Economics: The Governance of Contractual Relations, 22 J.L. & ECON. 233, 237 (1979) (noting that transaction costs limit the degree to which contracts can be fully specified).
93. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-39 (1952) (Jackson, J., concurring).
94. See THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 396 ("It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall.").
95. Id. ("And who is there that will either take the trouble or incur the odium of a strict scrutiny into the secret springs of the transaction?").
96. Id. at 398.
97. Id. at 395. Professor Kitrosser raises a provocative challenge to the unitary executive by arguing that it would lead to less accountability than does the current system with its headless fourth branch. See Kitrosser, supra note 45, at 1743-44. She rightly points out that the Bush administration invoked executive privilege so often that it was impossible to hold it fully accountable for its actions. See id. at 1764-68. Secrecy, she argues, destroys the whole argument that a unitary executive will be a more accountable executive. See id. at 1742-43. We substantially agree with this and would add that the doctrine of executive privilege is not spelled out in the Constitution and must be derived as a matter of structural inference. We would recognize executive privilege in core contexts where foreign policy and orders to the military are at issue. We would also recognize a privilege of prosecutors to keep information they have gathered secret. We would not, however, recognize a claim of privilege by former President Bush or former Attorney General Gonzales that would immunize them from answering the question: "Did you fire a U.S. Attorney for the purpose of helping Republicans win elections?" To that extent, we agree with Kitrosser. We should add that we see no reason why secrecy was needed when the White House intervened with the EPA to deny California's fuel mileage standards or with NASA over scientific research on global warming. The proper test for a claim of executive privilege ought to be the Morrison v. Olson test of whether Congress went too far in restricting effective presidential control. See Morrison v. Olson, 487 U.S. 654, 691-94 (1988). That test is woefully wrong in the removal context where the President clearly has the removal power, but balancing is necessary and proper with a judge-created, implied structural doctrine like executive privilege. At times, Kitrosser suggests that accountability requires not only transparency, with which we agree, but also procedural regularity. See Kitrosser, supra note 45, at 1755-57. This point may often be right as well, especially as to presidential directives and executive orders. However, we would have to hear more about the specific procedures Kitrosser would require to know if we would agree with her. In general, the critical point is that the President must be able to fire any subordinate without further process for a policy disagreement.
98. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 391-92.
99. See generally Marshall J. Berger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111 (2000).
100. If each coexecutive must directly gather information from every other coexecutive, there will be a substantive rise in information costs, creating inefficiency. See infra, note 101.
101. Mathematically, if there are N cabinet secretaries, the total number of information exchanges in a presidential system is N. In an unbundled system, there are N(N-l)/2, which is simply the finite summation over k=l...N of (k-1), which represents the situation where every coexecutive directly deals with every other coexecutive.
102. See John Kennan & Robert Wilson, Bargaining with Private Information, 31 J. ECON. LITERATURE 45 (1993) (discussing the various costs of bargaining with private information).
103. See id.
104. The persuasive efforts of the coordination coexecutive would merely add an extra step to the bargaining system described above. In the case of a coordination coexecutive, that person's task would be to convince other coex-ecutives to act against the narrow interests they were elected to advance. The trade coexecutive thus might be asked by the coordination coexecutive to implement a trade policy that substantially benefits the environmental coexecutive, but which is not optimal from a trade perspective. It is unclear in such a case which policy even a true statesman should implement. Either the policy will be inefficient for the nation, or the coexecutive must act contrary to the very reason for which he was elected. In short, a coordination coexecutive with only persuasive powers would be like a host nation for international treaty negotiations. The time and energy involved would be a terrible drain on government efficiency, yet it would still not reach the same level of coordination as that currently enjoyed under a bundled executive system.
105. See Omar Azfar, The Logic of Collective Action, in THE ELGAR COMPANION TO PUBLIC CHOICE, supra note 87, at 59, 67.
106. See id. at 67-69.
107. See id. at 68.
108. See id. at 67-68.
109. See id.
110. See Herbert Kaufman, Major Players: Bureaucracies in American Government, 61 PUB. ADMIN. REV. 18, 31 (2001).
111. See THE FEDERALIST NO. 62 (James Madison), supra note 2, at 348-50 (discussing the harm to international reputation and to domestic industry from instability in the government).
112. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 391.
113. Id.
114. See id. at 392.
115. See id. ("Energy in the Executive is a leading character in the definition of good government.").
116. U.S. CONST. art. II, § 1 (directing the President to "preserve, protect, and defend the Constitution of the United States").
117. See THE FEDERALIST NOS. 2-6 (John Jay) (regarding the threat of foreign wars), NOS. 7-8 (Alexander Hamilton) (regarding the threat of internal wars), supra note 2.
118. See THE FEDERALIST No. 68 (Alexander Hamilton), supra note 2, at 381.
119. See THE FEDERALIST No. 71 (Alexander Hamilton), supra note 2, at 402-03.
120. THE FEDERALIST NO. 72 (Alexander Hamilton), supra note 2, at 376-77. As Berry and Gersen agree, it is unlikely that coexecutives would be of much lower quality than a single President, since the difference in power and prestige would be so minor and few close substitutes would exist for coexecu-tive offices. It is also unlikely that the creation of coexecutives would increase the overall quality of decision making in the executive branch. Coexecutives would be political experts, just as presidents are political experts. Since individuals have finite skills and talents, there is no reason why we should expect that an expert politician would have a lot of expertise in substantive policy fields. Our appointment process for picking cabinet secretaries, together with the Incompatibility Clause, has combined to produce exactly the result predicted by Hamilton: the appointment and confirmation of qualified specialists adept in managing large organizations and sharing common policy goals. See THE FEDERALIST NO. 76 (ALEXANDER HAMILTON), supra note 2, at 423-24. Replacing some of the substantive expertise and management ability of the current cabinet with the additional specialized expertise that is needed to win popular elections would be a mistake.
121. See THE FEDERALIST NO. 73 (Alexander Hamilton), supra note 2, at 411 (predicting that the national perspective of the President will serve to check the factional interests in Congress, protecting the nation from improper or hastily enacted laws).
122. See HINDMOOR, supra note 48, at 134-35 (discussing principal-agent problems); MUELLER, supra note 53, at 367 (examining the effects of monitoring on the behavior of bureaucracies).
123. See generally HAL R. VARIAN, INTERMEDIATE MICROECONOMICS 172-76 (presenting the basic labor-leisure decision).
124. Just as monitoring by voters reduces the potential for shirking by elected officials, monitoring by an energetic President reduces the potential for shirking by subordinate officials. See HlNDMOOR, supra note 48, at 134-35.
125. See generally WILLIAM A. NlSKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 53-55, 120-23 (1971) (providing a general overview of some of the costs and incentives that guide bureaucratic decision making).
126. See HENRY I. MILLER, To AMERICA'S HEALTH 42-43 (2000) (discussing the incentives in the FDA favoring excessive caution to avoid negative publicity); Russell S. Sobel & Peter T. Leeson, Government's Response to Hurricane Katrina: A Public Choice Analysis, 127 PUB. CHOICE 55, 58-59 (2006).
127. See MILLER, supra note 126.
128. See Calabresi & Lindgren, supra note 32 (discussing the unique position of the President as a lightning rod for criticism).
129. See THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 2, at 391 ("[A] government ill executed, whatever it may be in theory, must be, in practice, a bad government.").
130. Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998) (arguing that referenda and other single-issue plebiscitary voting mechanisms are contrary to populism because they eliminate the intra-personal weighing of issues that occur in multi-issue elections). See generally VARIAN, supra note 123, at 54-58 (discussing the difference between cardinal and ordinal utility).
131. See generally MUELLER, supra note 53, chs. 7-8 (presenting simple and complex alternatives to majority voting).
132. See U.S. CONST. art. V.
133. See Geoffrey Brennan & Alan Hamlin, Constitutional Choice, in THE ELGAR COMPANION TO PUBLIC CHOICE, supra note 87, at 117, 117.
134. Michael J.G. Cain, Social Choice Theory, in THE ELGAR COMPANION TO PUBLIC CHOICE, supra note 87, at 83, 83.
135. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 125-26 (1962).
136. RIKER, supra note 66, at 111.
137. See id. at 111-13.
138. See BUCHANAN & TULLOCK, supra note 135, at 125-26; HlNICH & MUNGER, supra note 91, at 26.
139. See MUELLER, supra note 53, at 1-2 ("The basic behavioral postulate of public choice, as for economics, is that man is an egoistic, rational, utility maximizer."). This is nothing more nor less than the assumption of rational utility maximization.
140. Berry & Gersen, supra note 6, at 1387 ("Unbundling executive authority enhances democratic accountability and government performance . ...").
141. Part II.H, infra, specifically discusses the constitutional choice between voting rules, but this applies with equal force to the decision of bundling or unbundling decisions on government action.
142. The argument then becomes similar to Clark's argument against voter initiatives. Clark, supra note 130, at 467-73.
143. See RIKER, supra note 66, at 85-88.
144. The analysis that follows does not change substantively if multiple coexecutives are elected in each of a series of elections. Indeed, such a system would create additional opportunities for strategic manipulation regarding which of the coexecutives share elections.
145. HINDMOOR, supra note 48, at 28.
146. See DOWNS, supra note 46, at 265.
147. Id. at 260; MUELLER, supra note 53, at 305 ("[I]n deciding whether to vote, a rational voter must calculate the probability that her vote will make or break a tie ... . This probability ... becomes infinitesimal as [the number of voters] becomes large.").
148. Calabresi & Lindgren, supra note 32, at 2619-20.
149. See HlNICH & MUNGER, supra note 91, at 208 ("[I]deology serves as a means of reducing the costs of gathering information.").
150. See Clark, supra note 130, at 434-36.
151. See Calabresi & Lindgren, supra note 32, at 2619.
152. See George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3, 12 (1971) (noting that small minorities with strong preferences find the costs of procuring favorable regulation lowest).
153. See id.
154. RIKER, supra note 66, at 31.
155. Id. at 17. Transitivity requires that if A > B and B>C, then A > C.
156. Id. at 18.
157. See HlNDMOOR, supra note 48, at 80-81.
158. Id. at 81 (noting that the problem has been independently considered by the Marquis de Condorcet, Charles Dodgson, and Kenneth Arrow).
159. KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (1951).
160. Id. at 2.
161. HlNDMOOR, supra note 48, at 83.
162. RIKER, supra note 66, at 115-36.
163. Condition U requires that voter preferences must be free to span the universal domain of all possible rankings of alternatives. Id. at 116-17.
164. Condition P is the powerfully simple requirement that any outcome of the voting mechanism must be Pareto optimal. See id. at 117-18.
165. Condition IIA precludes the outcome from depending on changes in other alternatives that are not relevant to the decision. Id. at 118.
166. Condition D requires that no individual voter has controlling preferences. Id.
167. RIKER, supra note 66, at 270.
168. See id. at 119-20. Additional technical details are left out for clarity and convenience. A thorough analysis of this theorem would require a good deal more space and qualified statements, but it would add little value to the present discussion.
169. ARROW, supra note 159, at 46-48.
170. See RIKER, supra note 66, at 65.
171. This result is known as Duverger's Law. See id. at 145.
172. Id. at 113.
173. HlNDMOOR, supra note 48, at 88.
174. RIKER, supra note 66, at 85-88.
175. BUCHANAN & TULLOCK, supra note 135.
176. Id. at 70.
177. Id.
178. Id. at 64.
179. Id.
180. Id. at 68-69.
181. Id.
182. Id. (stating that strategic bargaining becomes a major problem as the rule approaches unanimity).
183. Id. at 70.
184. See, e.g., 1958 CONST. art. 89 (Fr.) (requiring three-fifths approval when the government submits an amendment to both Houses of Parliament convened in Congress instead of to the Houses acting separately, in which case simple majority approval must be followed by referendum); GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND (Federal Constitution) art. 79, §§ 2-3 (F.R.G.) (requiring two-thirds approval of both houses to amend the Basic Law, although certain provisions are not amendable).
185. U.S. CONST. art. V.
186. See A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 84 (8th ed. 1915).
187. BUCHANAN & TULLOCK, supra note 135, at 236 ("[I]f the basis of representation can be made significantly different in the two houses, the institution of the bicameral legislature may prove to be an effective means of securing a substantial reduction in the expected external costs of collective action without incurring as much added decision-making costs as a more inclusive rule would involve in a single house.").
188. Id. at 242.
189. See id. at 247-48 (noting the possibility that a bill supported by a geographically concentrated House majority could fail in the Senate).
190. Id. at 248.
191. See id. at 135-40 (presenting a model of logrolling that allows minorities to obtain some of their preferred policies by agreeing to support others); HINDMOOR, supra note 48, at 168-69 (describing the benefits to minorities with strong preferences from logrolling).
192. BUCHANAN & TULLOCK, supra note 135, at 134-35 (describing implicit logrolling by which politicians offer policy combinations that appeal in different degrees to different voters).
193. See THE FEDERALIST NO. 73 (Alexander Hamilton), supra note 2, at 411 ("The primary inducement to conferring the power in question upon the executive, is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design.").
194. U.S. CONST. art. II, § 7.
195. See MUELLER, supra note 53, at 281.
196. Strictly speaking, it need only benefit half the voters of those states and half the population of each congressional district of the supporting representatives. However, it is conventional to speak of the districts and states as discrete units, adding clarity without substantively changing the underlying logic.
197. HINDMOOR, supra note 48, at 172.
198. THE FEDERALIST NO. 73 (Alexander Hamilton), supra note 2, at 411-12 (rejecting arguments against the veto power).
199. Last Governor Without Veto Could Get It: Legislature Overcomes Colonial-Era Fears, N.Y. TIMES, Feb. 12, 1995, at 27 (noting that North Carolina was the last state without a gubernatorial veto).
200. Only six states have refused their governors the line-item veto entirely. See IND. CONST. art. V, § 14; NEV. CONST. art. IV, § 35; N.H. CONST. pt. 2, art. 44; N.C. CONST. art. II, § 22; R.I. CONST. art. IX, § 14; VT. CONST. ch. II, §11.
201. Clinton v. City of New York, 524 U.S. 417, 421 (1998) (holding that the Line Item Veto Act violated the Presentment Clause).
202. See, e.g., MASS. CONST. pt. 2, ch. I, § 1, art. II ("No bill or resolve of the senate or house of representatives shall become a law, and have force as such, until it shall have been laid before the governor for his revisal ... ."); N.Y. CONST, art. IV, § 7 ("Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor ....").
203. How have the states persevered with such hybrid systems for so long? The answer is that they have not. The state constitutions do not remove entirely any substantial portion of the executive power from their governors. While the coexecutives in state governments are independently elected, they still report to the governor-in whom alone the executive power is vested. See, e.g., ILL. CONST. art. V, § 8 ('The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws."); MICH. CONST. art. V, § 1 ("The executive power is vested in the governor."); PA. CONST. art. IV, § 10 ("The Governor may require information in writing from the officers of the Executive Department, upon any subject relating to the duties of their respective offices."). Exactly how much independence these subordinate, independently elected officials actually have is an interesting empirical question, but one that is beyond the scope of this paper.
204. See Calabresi, Some Normative Arguments, supra note 1, at 81.
205. See id.
206. Berry & Gersen, supra note 6, at 1399.
207. See Arthur Ludington, Progress of the Short Ballot Movement, in Horace E. Flack, Notes on Current Legislation, 5 AM. POL. SCI. REV. 70, 79-83 (1911) (discussing early twentieth-century efforts in a number of states to convert most statewide elective offices into positions appointed by the governor).
208. See Marshall, supra note 74, at 2452.
209. Truman: The Buck Stops Here, Harry S. Truman Library and Museum, http://www.trumanlibrary.org/buckstop.htm (last visited Apr. 7, 2009).
210. See THE FEDERALIST No. 70 (Alexander Hamilton), supra note 2, at 391 ("Every man .. . knows how often [Rome] was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator ... .").
211. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582-83 (1952) (rejecting the claimed power to seize a steel mill for the purpose of avoiding a strike during the Korean War).
212. See generally Calabresi, The Virtues of Presidential Government, supra note 1.
213. THE FEDERALIST NO. 51 (James Madison), supra note 2, at 290-91 (noting the need to fortify the executive against the legislative authority, which "necessarily predominates" in a republican government).