—Conor Casey, University of Liverpool School of Law
“There is nothing new under the sun” we are told in Ecclesiastes (1:9). This aphorism applies with particular force to public law scholarship, where we see the same conceptual and normative battles being waged in cyclical fashion by successive scholarly generations. Whether it’s over the pros and cons of judicial review, unitary executives, originalism, political/legal/popular constitutionalism – it is often hard to think of something truly new that can be said in many of these debates.
Professor Cohn’s new book, however, refutes this aphorism in spectacular fashion. Cohn’s book offers a compelling and novel comparative and theoretical study of the executive branch in contemporary constitutionalism. It is one of only a handful of works (the other one that comes to mind being Professor Harvey Mansfield’s Taming the Prince: the Ambivalence of Modern Executive Power (1989)and, way before that, canonical texts like Locke’s Two Treatises on Government and Montesquieu’ Spirit of the Laws) that moves beyond system-specific study of political executives and grapples with the conceptual nature of the executive branch in constitutional theory more broadly. It ought to be, and no doubt will become, required reading for students of constitutional theory and comparative constitutional law.
In this brief comment I will outline what I think the main contribution of the book is before sketching two issues I think emerge from the book that public lawyers should grapple with more than they currently do.
A. Main Contribution
The book’s main contribution to public law scholarship is its compelling conceptual account of the contemporary executive branch. It offers a long overdue accurate depiction of the nature of executive power in contemporary constitutional systems like the UK and US. Cohn argues the contemporary political executive is an institution characterised by ‘ingrained tensions’ built around competing conceptual bases of formal legal weakness, where the executive is the faithful agent of the legislature, and practical political strength where the executive wields so much discretionary power it is not bound by law in any substantial sense. For Cohn neither:
‘complete submission to the legislature nor imperialism fully characterizes the executive… Yet none of these conclusions should be viewed as a failure of theory. On the contrary: both subservience and dominance of the executive prosper in reality’ (p.55).
This way of understanding the executive branch is more conceptually sound than accounts that paint contemporary executives as Schmittian in the sense that they are somehow unchecked or unbound from law, their discretion guided only by political/public pressure. It is also more accurate than formalist liberal constitutionalist accounts of the executive as being a genuinely subordinate, modest, faithful executioner of law. Cohn’s ‘internal tension model’ of executive power instead captures the complexity and extent of its current role and status in constitutional democracies, avoiding the Scylla of myopic formalism and Charybdis of alarmist hyperbole.
The formalist account masks the central constitutional position of the executive: the fact that in both presidential and parliamentary systems it now invariably determines the policies underpinning most of the laws which effect citizens and drafts the bulk of statutes giving them legal force. It effectively makes its own binding law through use of copious delegated statutory power addressing every conceivable policy area. It also sits atop, and exercises considerable direction over, a powerful administrative apparatus staffed by civil servants and technocrats with regulatory reach over swathes of social and economic life. Its predominance over foreign affairs ensures it acts as the key mediator between the national and international political sphere. Its predominance in the political sphere also encompasses the frequent ability to act unilaterally, whether through broad statutory powers, creative use of enforcement discretion, leaning on compliant legal advice from loyal Attorneys-General, or amorphous authority drawn from under-determinate constitutional sources like the Royal Prerogative or the Article II vesting clause (chapters 2-3).
The alarmist account conversely gives inadequate weight to how commitment to legality and constitutional limits remain critical to political legitimacy. Even if executive actors do not feel morally constrained by legal limitations, intensely resent them, and try to strain their bounds, cultivating the perception they are genuinely acting under, constrained by, law remains important to their legitimacy in the eyes of citizens, civil servants, judges, and legislators. The constitutional traditions of United Kingdom and United States also share thin, but sticky, understandings of the boundaries of executive power linked to its role as faithful executor that cannot simply be wished away: subordination of the executive to the rule of legislation, the executive’ duty to faithfully execute the law even if it disagrees with it, and prohibitions on unilateral executive suspensions or abrogation’s of statute. Echoes of this formally weak conception of executive power – where the executive is above all the faithful executor of legislative dictates – remain embedded in each system and demonstrable in judicial doctrine that retains some bite when it comes to the outer bounds of executive action.
Cohn’s internal tension model moves beyond these binary pictures and better captures how the executive is at once subservient and predominant – law bound, but in some respects enjoying a political predominance beyond legal control in any substantial, or tightly binding, sense. Core constitutional limits and statutes do constrain the outer bounds of executive action, as do basic principles of administrative law concerning rationality and non-arbitrariness. As such, while the executive clearly cannot merely be considered a faithful agent and executioner of legislative dictates, neither is it a kind of Schmittian sovereign figure that can openly suspend legal constraints if they impede its political preferences or vision. The contemporary political executive is something uncomfortably in-between. It is predominant but shares the public power of the State with other actors and is not free to rule by decree (pp.52-57).
B. Two comments
- Rejecting myopia in evaluating executive power
Cohn’s normative critique of executive predominance is sophisticated and nuanced. While highly critical of the impact the fuzziness that attends contemporary executive predominance can have on good governance and the rule of law, Cohn shows an awareness and appreciation for the good reason’s executives tend to become constitutionally predominant in the first place (pp. 269, 287).
As becomes clear from Cohn’s book, diffusion of power toward the executive stems from recognition – by all the branches and their occupants – that achieving security, social stability, redistribution, and providing any kind of welfare state, can only really be secured where a polity has a robust executive given broad and deep discretionary power. This stems from the reasonable political determination that the executive’s ability to act with dispatch, energy, expertise, and unity make it more suitable – relative to a cumbersome multi-member legislature or unelected judiciary – to wield this power effectively to maintain ‘responsivity to the exigencies of political and social life’ (pp.257, 266, 272).
I suggest an implicit lesson from the book is that failure to heed the good reasons which have spurred executive predominance and a decline in the centrality of the legislature over time, can lead to myopic assessment of the virtues and vices of the executive’s current position. An assessment of the desirability of executive predominance that puts all, or most, of its emphasis on the importance of curbing risks of abuse of executive discretion can become blinkered to the serious threats to welfare and the common good that can proliferate in the private socio-economic sphere, under the watch of State officials unable to act with Hamiltonian vigour and dispatch.
These kinds of considerations – of the often mundanely good reasons for predominance – can get downplayed in comparative constitutional law discourse, which often puts a normative premium on curbing executive power when it comes to institutional design or reform. Though this kind of myopia usually comes from a benign place (who likes officials abusing power?) Cohn’s sober engagement with the why of executive predominance should serve as an implicit reminder that excessive weakness in the executive will carry its own very serious risks of abuse of power – of private power or State neglect of the vulnerable – that need attending to. It is also worth considering how executive weakness may, perversely, mutate into excessive strength if people tire of their State’s perceived inability to act expeditiously for the good of the polity and begin warming to blunter, authoritarian, solutions.
2. Making peace with executive predominance
Cohn’s thick descriptive analysis of the sheer range and sources of the executive’s authority suggest executive predominance is here to stay absent radical, unprecedented, political reform to deconstruct it (p.266-268). This is doubtless a story that can be told in many legal systems. The continuous delegation of broad statutory authority to the executive and agencies under its direction, the concentration of policymaking in their hands, the articulation of fuzzy rules and standards to govern its work, are core features of the public law and political practice of countless constitutional democracies.
Because of its deep embeddedness, the most useful question facing those of us engaged in normative debate over executive predominance in constitutional democracies, should not turn on first-order debates about whether it’s good or bad measured against some ideal-type tripartite separation of powers system long since defunct (p.287). Public lawyers should instead take Cohn’s lead and focus more energy on questions of institutional design – to offering conceptual frameworks, or design heuristics, for channelling and structuring executive action consistent with compelling normative ends broadly shared by persons of divergent first-order political views.
For her part, Cohn does not mount a full-scale assault on executive predominance, but instead suggests ensuring the fuzziness that accompanies it does not grow to pose a threat to the rule of law and ideals of ‘participation and deliberation’ (p.265). In respect of the rule of law, Cohn works with a ‘thin’ account which nonetheless shows a substantive Fullerian concern for arbitrariness and State capacity to interfere with the moral agency and freedom of citizens (p.260). Cohn suggests a good way to minimize excessive fuzziness – ie the kind of fuzziness not plausibly linked to any requirements of good governance – is to structure and channel executive action to better respect rule of law values. What might this entail? For a start, it could involve renewing respect for principles like ensuring executive actors make generally applicable rules and not act entirely via ad-hoc command; those rules are transparently promulgated; not abusively retroactive; are accessible and clear; non-contradictory; do not require the impossible; are not changed too frequently; and that there is congruence between the rules as posited and as applied.
To be sure, reinforcing these principles in judicial doctrine or internal executive policymaking would do little to dent executive predominance. But that would not be their point. Instead, moves to enhance judicial review for executive action disrespecting the foregoing rule of law values would ideally push the executive to structure action in a manner more conducive to respecting citizens’ moral agency and dignity and ability to plan their lives without fear of arbitrary state action (pp. 306-307). Such an approach seems like a promising way to maintain the many benefits of executive predominance, while seeking to optimize the inevitable risks of abuse that accompany widespread and capacious executive discretion.
In sum, we should not stop being concerned about executive predominance, but should not be blinkered. We should also put to bed the idea executive predominance – in parliamentary or presidential systems – can be significantly deconstructed. Instead, following Cohn’s lead, thinking about how to best channel and structure its power and predominance in a manner conducive to the common good, for example through renewed effort on giving rule of law values critical bite in policymaking and judicial doctrine, might be a more useful and realistic project going forward.
Suggested citation: Conor Casey, Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, Part 3: Thinking About Executive Power, Int’l J. Const. L. Blog, Jul. 24, 2021, at: http://www.iconectblog.com/book-roundtable-on-margit-cohns-a-theory-of-the-executive-branch-tension-and-legality-part-3-thinking-about-executive-power/
 See R v Miller  UKSC 5; Youngstown Sheet & Tube Co. v Sawyer U.S. 579 (1952).
 Interestingly, this kind of intellectual project is one that Professor Vermeule – one of Cohn’s main intellectual interlocutors – has enthusiastically embraced. Adrian Vermeule & Cass Sunstein, Law and Leviathan: Redeeming the Administrative State (Harvard University Press, 2020).