The Diffuse Executive

Authors

Anya Bernstein, University of Connecticut School of Law
Cristina Rodriguez, Yale Law School

Keywords

unitary executive; agency; agencies; administrative state; statutory interpretation

Abstract

A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, even if the top rung does not make every little decision, every rung should know and implement the President’s preferences.

The appeal of this model comes from a conception of democratic rule that highlights the President’s electoral bona fides: as the only representative with a national electorate, the President is supposed to be both loyal to the people’s will and beholden to it. But our own qualitative empirical research into decision-making within the executive branch poses a descriptive and normative challenge to this model. In our study of the work of dozens of agency administrators from across the state, we found an executive branch in which policymaking power is not unified but diffuse. Our findings suggest that an actual unitary executive is neither extant nor feasible in our mass democracy. Given this reality, anyone interested in the structure of the state must evaluate the institutional forms that do exist to determine which combination of them will best advance democratic values. The answer cannot simply arise from the Constitution; choices must be made. And as we spell out below, we think the diffusion we find in our research in fact promotes democratic values like accountability and responsiveness to the governed—some of the very values that make the ideal of a unitary executive appealing to its proponents. These various forms of diffusion, therefore, ought to be nurtured rather than resisted.

Recommended Citation

Anya Bernstein and Cristina Rodriguez, The Diffuse Executive, 92 Fordham L. Rev. 363 (2023).
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss2/1