Of sovereigns and servants.

• Author: Gerken, Heather K.
• Position: Symposium on Executive Power

INTRODUCTION

The essays in this Symposium occupy two distinct scholarly realms: local government law and the separation of powers. Unsurprisingly, the contributors are preoccupied with different questions. The local government scholars writing about executive power tend to emphasize the ways in which it might invigorate weak city governments, (1) while those we would typically term executive power scholars are--with two noteworthy exceptions (2)--mostly interested in figuring out how to tame an overly energetic national executive. (3) If the academic world is divided between lumpers and splitters, the conference would seem to confirm the intuitions of the latter. A closer look, however, reveals several interesting opportunities for cross-pollination.

The goal of this brief Commentary is to offer a general conceptual frame for connecting some of the localist and nationalist strands in this Issue. It does so by bumping the analysis up one level of generality in order to identify two institutional fixes common to both the local government law essays and executive power essays. One relies on the "power of the sovereign"; the other relies on the "power of the servant." What these concepts add to the debate is a bit of shared terminology--a way of capturing a set of distinctions that run through large portions of constitutional law (and other areas as well). (4) They thus allow us to compare and contrast the markedly varied policy proposals offered by four of the Symposium's participants (5) and serve as the basis for some quite preliminary and necessarily truncated observations about the debates taking place in this Issue.

1. CONNECTING THE DOTS: TWO INSTITUTIONAL MODELS FOR CORRECTING POWER IMBALANCES

Though the local government and executive power scholars focus on a similar problem--correcting a perceived power imbalance--the contexts in which that imbalance arises are quite different. The local government law scholars are largely worried about what we might call a federalism problem--weak cities in need of protection against an overweening state and/or national government. The executive power scholars, in contrast, are primarily concerned with the balance of power among three nominally coequal branches of government. Put more succinctly, the local government scholars are focused on vertical power imbalances whereas the executive power scholars worry about horizontal inequities. (6) The fixes for these power imbalances, according to the contributors to this Issue, similarly involve a vertical or horizontal redistribution of power.

What connects these disparate scholarly projects is the institutional correctives the contributors suggest for addressing the power imbalance. The first and more conventional fix harnesses what one might call "the power of the sovereign." This familiar strategy relies on sovereignty or its functional equivalent to mediate the relationship between two institutional actors. For scholars proposing a vertical corrective, the power of the sovereign is a variant of federalism. By casting the lower-level institution as sovereign, federalism creates a formally or informally delineated zone of autonomy to protect against undue interference from above. David Barron, for instance, argues that we should preserve space for urban policymaking, (7) expanding or maintaining the city's de facto sovereignty. (8) For scholars proposing a horizontal fix, the power of the sovereign similarly relies on zones of autonomy. Here, however, the institutional actors are roughly coequal members of government--mimicking the classic separation-of-powers model--rather than institutions placed on different rungs of the constitutional hierarchy. Bill Marshall, for instance, proposes the creation of an independent Federal Attorney General. (9) Thus, in both its horizontal and vertical forms, the power of the sovereign relies on autonomy and separation to ensure that ambition is able to counteract ambition.

A second, counterintuitive institutional fix proposed in this Issue relies on what I term "the power of the servant" to check a power imbalance. This fix depends on the ability of an institutional actor placed somewhere down the chain of command to influence the decision-maker who is nominally the boss. Unlike the sovereign, the servant lacks autonomy and, if push comes to shove, must cede to the higher authority. The power of the servant thus stems mainly from dependence: The fact that the higher authority needs the servant to perform a task creates space not just for discretionary decision-making, but also for bureaucratic pushback. On this view, the stronger the connective tissues that bind the master and servant, the more likely it is that the servant will be able to cajole, bargain with, even place demands upon the master. It is not merely that power runs in both directions. The power of the servant also rests on the assumption that familiarity will breed trust--conferring a sort of community standing on the servant, as I argue below, and thereby further augmenting the servant's...