—Mark A. Graber, University of Maryland Carey School of Law
Professor Margit Cohn has written a book that is terrific on two dimensions. The first concerns substance. Readers will be a lot smarter than they were before reading A Theory of Executive Branch. Professor Cohnhas much to teach constitutional scholars in the United States, the United Kingdom, and across the globe. The second concerns scholarly development. A Theory of the Executive Branch promises to be what the great unfortunately late Robert Cover called a jurisgenerative work. Professor Cohn’s understand of fuzzy law and the relationship between law and discretion should generate rich scholarship on the executive branch, on constitutional development, on constitutional governance and on the interaction between law and politics in constitutional systems.
The very title of Professor Cohn’s work is a major breakthrough in constitutional thinking. A Theory of the Executive Branch offers a book length theory of the executive branch (readers will have to look elsewhere to determine who is buried in Grant’s Tomb). Too many scholarly bookshelves are loaded down with A Theory of the Judicial Branch, Another Theory of the Judicial Branch, A Theory of the Judicial Branch Revisited, the second edition of The Theory of the Judicial Branch (the authors changed their mind about Oxford commas) and the like. A fair case can be made that these theories of judicial branch, like justifications of abortion policy, reached the point of diminishing intellectual returns many years ago. Fortunately, other governing institutions exist. Professor Cohn has provided us with a way of thinking about one of those branches. Even if one disagrees with her theoretical overlay (I do not), just having a theoretical overlay to begin the conversation is a far more vital advance on constitutional scholarship than My Theory of the Judicial Branch and Constitutional Interpretation, which is no doubt forthcoming from at least four university presses in the very near future.
Professor Cohn’s first vital insight for students of constitutionalism is that executive branches have much in common. Differences between presidential regimes and parliamentary regimes are overrated as are differences between regimes with supposedly written and supposedly unwritten constitutions. The executive branches in the United States and the United Kingdom turn out to be functionally quite similar, even though the United States has a written constitution that provides for a presidential system and parliamentary government is at the core of unwritten constitutionalism in the United Kingdom.
Professor Cohn’s second vital insight is that much executive action is constituted by “fuzzy law.” These are practices structured by both legal and discretionary norms in ways that cannot be fully disaggregated. Much of A Theory of the Executive Branch consists of delineating thirteen forms of fuzzy law. Professor Cohn recognizes that while we might want to change the balance of legal and discretionary factors in executive action or the ways in which legal and discretionary factors interact, no law-free or politics-free zones exist in executive branches. Their creation is neither desirable nor possible. Those who design constitutional institutions, modify them, or merely manage a constitutional regime govern best by making creative use of the tension between legality and discretion rather than by trying to put law and politics into separate cabins. Scholars, following Cohn, would be best advised to follow that example.
So much for the elevator talk (imagine a large skyscaper with a few stops).
Pathbreaking theoretical works on constitutions, like constitutions, have a life of their own. A good theory theory of X almost always turns out to be a good theory of something more. A Theory of the Executive Branch is nominally a theory of the executive branch in the contemporary United States and United Kingdom. Professor Cohn’s approach, however, is capable of space, time, and institutional travel. Space travel explores whether fuzzy law structures regimes other than the United States in England. Time travel investigates whether fuzzy law structures past as well as present regimes. Institutional travel assesses the role fuzzy law plays in other forms of institutional decision making.
Space Travel. A Theory of the Executive Branch clearly wants to travel outside the United States and United Kingdom. One comfortable destination is other common law regimes. Fuzzy law may be a common law practice or a consequence of common law practice. If common law judging has always been considered more fuzzy than civil law judging, then we might be unsurprised that common law regimes have constructed more fuzzy law executive branches than civil law regimes. Professor Cohn might wish to travel to all western democracies. Fuzzy law seems a feature of the bureaucracies that developed in western constitutional democracies in the late nineteenth century. Wherever we find an administrative state, we are likely to find fuzzy law. Fuzzy law may be inherent in constitutionalism. James Madison was hardly the first or last to notice that no one can write a constitution that covers all contingencies. All constitutional democracies must on a regular basis attempt to figure out how entrenched messages from the past must be decoded to meet contemporary contingencies that were at least partly unforeseen by venerated ancestors. Mark Tushnet might be the first to remind us that constitutional authoritarians rely on the rule of law which critical legal theories properly note is always fuzzy law. The legal project is just fuzzy by nature. Indeed, if all rulers must inevitably rely on practices with law-like qualities but which require consider discretion when implementing, then fuzzy law may be a universal phenomenon that structures in different ways government in the United States, South Africa, Singapore, and the planet Vulcan.
Time Travel. A Theory of the Executive Branch focuses on contemporary political regimes. There are few references to Abraham Lincoln or William Gladstone, and even fewer references to George Washington or William Pitt. This focus on contemporary political regimes raises questions about whether the book is about the executive branch or the contemporary executive branch. Limiting the theory to the contemporary executive branch raises questions about what developments brought about this regime, what executive branches looked like before those developments, and whether contemporary constitutional democracies are capacity of experiencing another fundamental regime change. Consider several drivers of fuzzy law. As suggested in the above paragraph, the contemporary executive branch may be a product of the administrative state. We would need a different theory of the executive branch to describe past regimes that employed only a few persons to perform far fewer tasks in far less time. Globalization may have created the contemporary executive branch. The need for countries to act globally usually maximizes executive power, frequently minimizes the time for deliberation and often increases perceived needs for executive discretion. New forms of communication may have created the contemporary executive. Executives now have the power to communicate with the followers immediately with a twitter stroke. Such technologies enable them both to go over the heads of officials in the legislative branch and secure increased discretionary powers. Polarization may matter. In a polarized system, the party that controls the presidency has numerous incentives to make fuzzy law in the legislature or rely on fuzzy modes in the executive.
The durability of the contemporary state depends to some degree on the underlying foundations for fuzzy law. If polarization provides crucial foundations an executive branch structured by tensions between discretion and legality then we might expect executive branches to function differently should politics move into a depolarization cycle. If, however, globalization and new communication technologies are fueling the contemporary executive regime, practices grounded in fuzzy law are likely to be impervious to change. Given best estimates, we are likely to see more fuzzy law than less (and constitutional design is likely to be a poor means of reducing fuzzy law in the long run given the underlying foundations for that phenomena).
Institutional Travel. Professor Cohn has written a book about the executive branch, but her claims help us understand how all governing institutions function and are structured. Most obviously, judicial decision making in common law systems involves the same tensions between written law and discretion that structure executive decision-making. The same tension structures constitutional review across the known universe. Constitutional decisions by national courts in the United States, South Africa, India, Israel and other regimes seem partly explained by law and partly explained by politics. More often than not, no good way exists to separate legal components from more political components. The tensions between written law and discretion also characterize the legislative branch. A high percentage of the fuzzy law that structures executive decision-making has origins in legislative decision-making. In contemporary democracies, legislatures, whether considered sovereign or not, have fuzzy boundaries. When Parliament can be prorogued and when the Congress can exercise the commerce power are questions as much at the border of law and politics as those questions that structure judicial and executive decision-making. The universality of fuzzy law across institutions suggest what Professor Cohen has modelled is not the executive branch, but contemporary constitutional politics. Fuzzy law is ubiquitous, even as fuzzy law looks different from executive, judicial and legislative perspectives.
Implications. The Federalist Papers sets out some classic tensions between the role of law and judgment in constitutional regimes. Publius famously claims that law and government are necessary because men are not angels. Much of The Federalist Papers then insists that the Constitution will work only if most of the time, government is operated by persons with exceptional capacities for governance and virtue. Constitutional design then matters because legal rules should privilege the selection of persons with exceptional capacities for governance and virtue. What we have is a layer of law followed by a layer of politics followed by a layer of law without end. There is no bottom layer. As the famous line goes, it is turtles all the way down.
A Theory of the Executive Branch suggests the same understanding of contemporary executive branches and constitutional decision-making. Rather than dissolve the tension between legality and discretion or assign each a distinction function, Professor Cohn suggests all constitutional democracies can do is seek to keep that tension constructive rather than destructive. Some efforts may be on the more legal side of the ledger. Some institutions may generate more constructive interactions between legal rules and political discretion than others. Virtue will nevertheless be needed. Constitutional democracy is likely to survive the first part of the twenty-first century only if most political leaders most of the time have the judgment necessary to understand the appropriate fuzzy limits to their powers and how to act constitutionally within those fuzzy limits. This suggests that liberal theories of constitutional need to be supplemented by liberal theories of political virtue that are thicker than mere calls for liberal neutrality. Liberal constitutional leaders need to act rationally. They need to act on the basis of empirical evidence and decent values. They need to act in these ways all the while being committed to a set of institutions, even when those institutions generate policies they do not like. This is a tall order, but Professor Cohn has provided some of the right answers and, more importantly, asked the right questions about the relationship between law and discretion that might generate better answers in the future.
Suggested citation: Mark A. Graber, Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, Part 2: To the Executive Branch and Beyond, Int’l J. Const. L. Blog, Jul. 24, 2021, at: http://www.iconnectblog.com/2021/07/book-roundtable-on-margit-cohns-a-theory-of-the-executive-branch-tension-and-legality-part-2-to-the-executive-branch-and-beyond/