The paradox of power in the modern state: why a unitary, centralized presidency may not exhibit effective or legitimate leadership.

• Author: Fitts, Michael A.

Presidential power is the power to persuade.(1)

Introduction

Numerous scholars have written in recent years about presidential influence, although from widely different perspectives. On the one hand, many commentators have criticized what they see as the tyrannical and unchecked power of the president, who is often thought to ignore the views of Congress, the federal bureaucracy, and the public regarding appropriate policy.(2) On the other hand, some observers have discussed at length the supposed weaknesses of the president, who is often viewed as unable to affect, let alone direct, events in many policy areas.(3)

Not surprisingly, these diverse factual conclusions often mirror contrasting normative positions on the value of a strong president. On one side, proponents of a strong president argue that a government more directly controlled by a single decisionmaker - that is, a strong unitary executive - frequently avoids many of the collective action problems endemic to legislative bodies or dispersed government organizations, such as Congress or a plural executive. Borrowing from public choice theory, these proponents conclude that the exercise of power by a centralized but politically visible and electorally accountable institution, such as the president, often serves as the most effective and democratic form of government. In a sense, it is a better form of enterprise liability." Critics of presidential power, on the other side, emphasize the failures of recent presidents. their lack of accountability to many important political constituencies (both majoritarian and minoritarian); their inability to exercise effective leadership; and their apparent lack of competence, let alone expertise.(4) The succession of scandals surrounding each of the last three presidents reinforces this view. Proponents of this position ask why more power should be placed in such a discredited and potentially tyrannical institution.

Despite these different assessments of the president's appropriate role, most contributors to this debate seem to agree implicitly on one thing: vesting enhanced authority in the person of the president has increased his influence in the past and will continue to do so if additional centralizing changes are implemented.(5) This view is especially prevalent among legal academics, who generally assume that giving greater formal legal control to the president through devices such as a line-item veto or executive order 12,291,(6) will necessarily increase his ability to work his will over the bureaucracy, and the government in general.(7) Formal legal power, in other words, will ultimately translate into real policy influence. Similarly, political science scholars who study the strategic implications of political organization suggest that the political singularity of the presidential persona is a source of immense informal political strength. By applying insights derived from game theory, these commentators delineate the president's strategic advantages in overseeing the modern state, chiefly his influence on the public agenda, ability to establish "focal points" for political bargaining, and freedom from the costs of collective decisionmaking and action.(8) Indeed, even critics of a strong presidency recognize this centralization as an important - albeit unwelcome - source of the president's power.(9)

As a result, the debates over whether the president is strong or weak, and whether his power should be increased or limited, have focused invariably on legal, structural, and political changes that would either vest or reduce personal presidential authority. On the one side, those who argue that the president is too strong tend to support expanded congressional oversight of the White House, limited use of the presidential veto, increased autonomy of the executive branch bureaucracy, and increased access for Congress and the press to government documents and deliberations under the Freedom of Information Act (FOIA),(10) Government in the Sunshine Act (GSA),(11) and Federal Advisory Committee Act (FACA).(12) On the other side, those who perceive the president as too weak usually call for a more "unitary executive." These proponents tend to support the enactment of a law authorizing a line-item veto, expansion of presidential supervisory powers over the bureaucracy through executive orders such as 12,291,(13) 12498,(14) and 12,866,(15) elimination of the independence of independent agencies, expansion of the executive privilege doctrine, and greater insulation of the president from public scrutiny under FOIA and FACA.(16) As the breadth of this list indicates, resolution o most legal issues regarding the powers of the presidency turns on whether one views the president as either too strong or too weak.(17) Both sides seem to agree, however, that increasing the centralization of power in the person of the president, both legally and politically, will significantly increase his influence.(18)

This Article takes issue with some important elements of this analysis. I argue that the structural changes that appear to enhance the power of the president under public choice approaches and unitary executive principles can, at the same time, actually undermine the president's reputation, his ability to resolve conflicts, and ultimately, his political strength. As a result, formal attempts to strengthen the presidency may have "diminishing marginal returns" and perhaps even negative effects, at least in some contexts. The reasons are complicated but straightforward: the individuality, centrality, and visibility of the "personal unitary presidency," which is seen as an advantage in terms of collective choice and public debate, can be a disadvantage when it comes to conflict resolution and public assessment. By using the term "mediating conflict," I refer to the way in which a political leader or institution overcomes the social and political costs of resolving distributional and symbolic disputes.(19) Due to his singularity and enhanced visibility, a unitary, centralized president may be less able to mediate many of these conflicts. At the same time, he may be politically evaluated more often under personal (rather than institutional) criteria and subjected to an overassessment of government responsibility and error. This combination of effects can undermine not only the popularity and perceived competence - what I will call "legitimacy" - of the person who holds the office, but indirectly, the president's political influence as well. What the institution of the presidency seems to gain in strategic power from its centralization in a single visible individual, it may lose, at least in some contexts, as a result of the normative political standards applied to individuals.

This analysis is intended to explain a paradox in the current debate. Many commentators suggest that the presidency has become more centralized both legally and politically in recent years, as the president and his bureaucratic alter ego, the Executive Office of the President, have become more, involved formally and informally in public policy decisions.(20) At the same time, some commentators, led by Theodore Lowi, have persuasively detailed the political weaknesses and perceived inadequacies of modern presidents.(21) How can these observations be reconciled?(22) Extending Lowi's analysis, I argue that while the presidency may have become a more complex and effective institution bureaucratically and legally, in many ways it has also become more individualized politically, which can undermine its political legitimacy and strength. The legal theory of the unitary executive, for which I have some sympathy, can thus be at war with itself.

What are the implications of this analysis? First, legal scholars should appreciate the theoretical complexity of the problem. The debate over whether the president is too strong or too weak is in some cases a false dichotomy because the various legal and political changes serving to centralize formal and informal presidential resources may increase presidential influence in some contexts and diminish it in others.(23) Indeed, although a more central, unitary president may be stronger overall, he may nevertheless be perceived as less competent. In this sense, one important goal of this Article is to explore how the source of at least some of our frustration with the office of the presidency is the result of the structure of the position, rather than the personal "mistakes" of its inhabitants.

The second purpose of this Article, though far more speculative, is policy oriented: to suggest possible legal reforms and tactical approaches modern presidents could follow. Can structural mechanisms or approaches be developed that help the chief executive, when appropriate, mediate conflict and avoid certain types of individualized scrutiny? In the past, old-style political parties often filled this role,(24) but we are unlikely to return to that era.(25) In the alternative, I offer several legal, structural, and political changes that might improve the president's ability to mediate conflict, including (paradoxically) reassessment of the line-item item veto, selected cutbacks in direct presidential oversight of agencies, and the judicious creation of commissions, such as the Commission on Base Realignment and Closure,(26) which operate with less direct presidential control.

Part I describes the different ways in which the modern presidency has become more centralized legally and politically, making the office more visible and politically accountable. Under the analyses developed separately in the legal literature on the unitary presidency and in the political science literature on a centralized "modern" or "plebiscitary" presidency, these developments would seem to make the presidency a more effective and democratic institution. These writings, while focusing on different substantive areas, share common theoretical...