—Mark Tushnet, Harvard Law School
I offer three comments on Professor Cohn’s terrific book, the first and second focused on the implications for law of her analysis, the third sketching a broader jurisprudential “take” on the material.
1. Justice Jackson’s categories. Early in the book, and reiterated later, Professor Cohn mentions Justice Jackson’s three categories of presidential power, and specifically the second. There “the President acts in absence of either a congressional grant or denial of authority, … [in] a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Professor Cohn doesn’t quote Jackson’s account of how disputes about the scope of presidential power are resolved in this twilight zone: “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.”
I had expected Professor Cohn’s book to conclude with an explication of the constitutional implications of Jackson’s category-two formulation. In the absence of a discussion from Professor Cohn, I sketch such an explication here.
Jackson’s formulation is ambiguous: is he simply describing, empirically, how things are likely to come out in twilight-zone controversies, or is he prescribing some sort of (non-abstract) legal rules (and if so, what is that rule)? I suggest that the ambiguity can be resolved by treating the descriptive account as prescribing a rule.
What I mean is this: according to what I call the Madisonian account of separation of powers, the law of separation of powers consists entirely of the interaction among the branches – for Madison, exclusively the interaction between Congress and the president, today, interactions that occur when the courts (finding a justiciable controversy) intervene. To adapt a phrase J.A.G. Griffith used about the British constitution, in this domain the Constitution is what happens.
So, for example, to know what the U.S. Constitution is in matters of emergency powers or regulation of the environment, we describe the political equilibrium at the moment of observation: “For now, the actual distribution of power (for example, unified government, or a strong parliamentary majority) means that the president or the prime minister has the constitutional power to do X,” or, “For now (divided government or a weak and factionalized parliamentary majority or a coalition government), the president or the prime minister lacks the constitutional power to do X.”
Note several points about this formulation. (a) It offers a rule about the Constitution’s meaning, not merely about what the current array of political power happens to be. In my view that’s consistent with what I think of as the Madisonian tradition of constitutional interpretation in the United States, and the Griffith account of the British constitution’s meaning.
(b) It is necessarily time-bound. That in turn has two implications. First, with respect to the controversy at hand: the contours of political power might change even as the controversy proceeds (the president’s party might gain unified control of Congress, or divided government might replace unified government). That might change the political outcome and for that reason the Constitution’s meaning. Or, the contours of political power might remain stable until the issue simply disappears from the political agenda. If this happens often enough, perhaps the Constitution’s meaning will be liquidated (in Madison’s terms) by recurrent practice. This is the current account of how practice can provide a “gloss” of fuzzy terms.
Second, with respect to the general controversy (or the general type of controversy): the resolution of any specific controversy (of a general type has weak implications for the resolution of later controversies (put another way, the precedents established by practice are weak). The reason is that what matters, on this account, is what the current array of political power is. Of course a prior outcome (including a Supreme Court decision) provides a rhetorical resource to be deployed in the later controversy (“I can do this because the Supreme Court said I could do it” versus “The Supreme Court said that you could do that, but that’s different from what you’re trying to do now”).
(c) As the observation about the Court’s role indicates, in modern circumstances Madisonian interactions include the courts. Not, though, as the final arbiters of controversies. What a court says is a datum to be taken into account by legislators and executive officials as they continue to negotiate over executive power (although sometimes the datum is sufficient to lead one party to withdraw from the field for the moment).
(d) Nothing in the Madisonian account – as I have presented it – turns on whether politicians have what some have called a “pro-constitutional” cast of mind or take the positions they do because (in their view) doing so advances rule-of-law values. They might have such a cast of mind but on the Madisonian view the promotion of constitutional values or the rule of law is a by-product of what the politicians do for whatever reasons they have. As such, the normative account is subject to empirical observation: we have to ask whether the outcomes we observe, both at the moment and, more important, over time, are consistent with the values of constitutionalism and the rule of law.
The implication of Jackson’s formulation is that constitutional meaning about executive power is forever unsettled. Politics might be such that an equilibrium is reached and persists for a not insubstantial period of time. It might not be, in which case the interpretive controversy will persist (notwithstanding a judicial intervention). Or it might recur decades later, as what scholars of American political development describe as a new political order (or regime) comes on to the scene.
2. The judicial role. In contrast to the preceding perspective, Professor Cohn concludes the book with a discussion of the ways in which courts can, as she puts it, keep the tension between fuzziness and legality in check. She offers case studies of emergency powers and environmental regulation, and comes up with some approaches she commends to the courts in both areas.
I confess to some quite unoriginal skepticism about these recommendations. Professor Cohn cites leading scholars in both fields who worry about judges’ ability to intervene effectively without overly impairing the underlying goals of executive actions in both areas. Sometimes that worry takes the form of skepticism (which I share) about judges’ ability to “make” good policy about emergencies or the environment.
Professor Cohn’s strategy is different. For her, judges shouldn’t engage in an examination of substantive policy (except perhaps in quite extreme cases of failures of basic rationality). Instead, they should invoke general principles of legality – general in the sense that they apply to all substantive legal domains. To do so they needn’t have anything other than the roughest sense of the substance of environmental or emergency policy.
I’m not sure that this entirely defeats the skeptics’ concerns. The reason is that any judicial intervention, even in the name of legality, impairs to some extent the executives’ judgment about what policies best advance environmental or emergency goals. And, the skeptics believe, judges simply have no idea about whether that impairment is “significant” with respect to the underlying social purposes at stake. That seems to me basically right.
3. Fuzziness. Finally, to jurisprudence: Professor Cohn provides us with a comprehensive catalogue of the ways in which the distribution of power between the executive and the legislature is “fuzzy,” in her terms, or perhaps better, how that distribution can be “fuzzified,” so to speak, by political actors. As I read the description of the mechanisms by which fuzziness arises, I was reminded of Karl Llewellyn’s catalogue of competing canons of statutory interpretation.
Llewellyn offered his catalogue in the service of a general account of law – in my view, one in which the availability of a sociologically defined set of argument-forms is the law in a jurisdiction. Although Cohn doesn’t appear to offer such a general account of law (and, my sense is, would disagree with Llewellyn’s account), perhaps we should take her book as providing support for Llewellyn. That is, perhaps we should see it not simply as a story about the fuzziness of the law dealing with executive power (“a theory of the executive branch,” as the book’s title has it), but as an application of a general legal theory to a specific domain.
Finally, I note in this connection that a perspective influenced by Llewellyn would, I think, not look for legal doctrines to keep the tension in check. As I’ve indicated, Llewellyn’s theory is ultimately sociological. For him, the tension is kept in check by judgments by well-socialized lawyers about the proper limits of public power. In principle he would examine things like the content of legal education, the rhetoric of leading lawyers about legality (not about specific controversies), and the like to identify how the legal profession is shaped in Great Britain and the United States. (Llewellyn actually implemented a version of this in-principle program in his co-authored study of dispute resolution among the Cheyenne in the United States.)
Suggested citation: Mark Tushnet, Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, Part 1: Politics as Law: Understanding How (Normatively and Descriptively) to Regulate the Executive Power, Int’l J. Const. L. Blog, Jul 23, 2021, at: http://www.iconnectblog.com/2021/07/book-roundtable-on-margit-cohn’s-a–theory-of-the-executive-branch-tension-and-legality-part-1-politics-as-law-understanding-how-normatively-and-descriptively-to-regulate-the-executive-power.