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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 4 | Tension and Legality: Response to Commentators

Margit Cohn, Hebrew University of Jerusalem Faculty of Law

While writing this book, and after it was published, I hoped that academics would be interested in my work, to an extent that they would not only read the book but, hopefully, both understand its main points, and be driven to comment on some of the points made. The panel held during the 2021 ICON-S Mundo Conference and its fruit, this series of blogs, shows, that my hopes were answered. I cannot thank the panel members enough for their important contributions at the conference and in this blog series. All I can do for now, beyond sending a message of appreciation, is to briefly address some of the points made. Criticism is just as important as praise; all comments made have enriched my understanding of the ways I, and my colleagues, current and future, can further develop the study of the executive branch. So, I first set aside the praise (difficult as this may be for a human being such as myself) and focus on the panelists’ comments and suggestions.

Professor Weill has presented a well-rounded and concise description of the book, as has Dr Conor Casey; both set an excellent base-point for further exploration.

Law and politics: all commentators in this blog series are aware of the intricacies of the continuous interaction between these two spheres. I fully agree: this was an interdisciplinary exercise, the only type of scholarship that, in my mind, best informs the study of law.

Fuzziness as a model of law instructing the executive branch: I am flattered by Professor Tushnet’s link between my work and Karl Llewellyn’s canons of statutory interpretation. I did not think of this link, and it was very fruitful to rethink my account in light of this classic contribution. I do believe that the types of fuzzy law discussed in the book offer a distinct vision of the nature of law. In other words, the thirteen forms of fuzziness analyzed in the book support a general argument for the indeterminacy of law; thus the book can offer an introduction to a general account of law and its machinations, at least in public law.  

A note on comparison: twilight zones, residuality et al.: One of the aims of the book was to share my accumulated knowledge of the ways two executive branches are structured and applied. Thus, beyond the suggestion of a theory, or model, that is applicable in my view to all contemporary constitutional/liberal states, this is a comparative analysis of two systems, the United States and the United Kingdom. The trappings of each of the systems are reflected in the birth and growth of distinct categories and rules, but, as I find, functionally, the Anglo-Saxon attitudes towards the exercise of executive power are more similar than different. I have thus listed these doctrines, but attempted to provide an analysis that is based on none of them.

One of the examples of this methodological decision was, as Professor Tushnet notes, a lesser reliance on Justice Jackson’s categories as expounded in Youngstown (1952).[1] Seven decades after its delivery, the decision remains central to any US curriculum of constitutional law. Tushnet’s elegant analysis of the ways Jackson’s second category, concerned with ‘a twilight zone’ in which concurrent authority, shared by Congress and the President, may exist, could indeed instruct the ways in which ‘fuzzy’ executive power is implemented on the ground. Addressing that direction in the book,[2] this doctrine was contrasted with a completely different British one, applied in the context of the exercise of the Royal prerogative. As part of the victory of Parliament over unfettered Crown power, the principle of residuality prohibits, on its face, Crown (politically, executive) power that does not rely on a statutory authority, once a statute on a hitherto prerogative power is introduced. This rule seemingly contradicts at least one of Justice Jackson’s categories expressed in Youngstown.[3] Juxtaposing this rule with the ones emerging from the fuzzy lines of Youngstown, what emerges in both systems is an ambiguous structurethat is, as Professor Tushnet shows in his analysis of the latter, highly contingent on politics and their changing patterns.

This functional convergence is further reached by the usage of distinct doctrines. Most prominent, in the US, is the ‘historical gloss’, painted over unilateral action as a consequence of long-standing Congressional acquiescence. As for the UK, scholars and politicians alike have recognized the existence of ‘third source’ unilateral powers that cannot (or should not) be identified as historical prerogative powers; these are justified inter alia by the ‘Ram Doctrine’, selected by Rivka Weill as a particularly far-reaching doctrine, all discussed in the book.  

My attempt at focusing on convergence may have led to shorten the analyses of both groups of justifications: the best that could be attempted was the noting of the ideas that have served both systems. Further development of these doctrines in a comparative context could be one of the paths to be taken in the future.    

Internal tension and the theory of the executive. As all commentators have noted, the irresolvable tension between dominance over law and subservience to law, stands at the basis of the theory of the executive expounded in the book. The notion of ‘internal tension’ is also central to other aspects of public law; consider for example the tension between relatively rigid constitutions and the requirements arising from ever-changing conditions of a vibrant public life. I find the vision of function under constant tensions quite compelling; I am reminded of a mechanical bull pulled by two ropes. Not a very pleasant vision, but one that best captures the husbandry of public affairs.

Conor Casey, whose comment captures the spirit of the book, adopts this notion, but he argues that the pull of the forces that enhance executive powers should be stronger than its opposite. I have read his wonderful doctoral thesis, so know a bit more about his views on the matter. I view things differently. The unavoidability of executive power, which can indeed be invoked for the public good, is quite likely to contribute to an escalating practice of abuse of power. Examples are discussed in many of this conference’s panels. This is why I took pains to offer, in chapters 9 and 10, some normative analysis, that ends with a call for active judicial participation, a point I now address.

On the role of the judiciary: My argument for active judicial involvement is based on two distinct sets of justifications, ‘the rule of law’ and participatory/deliberative theories of democracy. Joining those who support judicial heightened review, here, too, I reject hierarchical accounts, under which a single bearer of the last word should be traced and possibly cabined. The skepticism expressed in Professor Tushnet’s comment is not surprising; his Taking the Constitution Away from the Court (2000) continues to shine as the most important work in this context. Joining some of these who offer a different account, I argue that beyond their function as protectors of the values often encapsulated in the concept of the rule of law, courts offer a distinct venue for raising issues onto the political agenda, offering those members of society that have no direct access to government corridors an important opening to be represented and heard. As Mark Graber has noted elsewhere, judicial review ‘may facilitate public participation in constitutional decision-making because litigation is a form of political participation’; and, being a ‘particularly cheap form of political participation’, litigation serves to expand participation.[4]

I further claim that this judicial role should be played also in so-called administrative law issues, or government policies that do not directly challenge constitutionally-protected rights and values. Starting out as an administrative law scholar, I firmly believe that with all due respect to the protection of political rights, members of society are constantly under the threat of being bombarded by policies that may irretrievably transform the public sphere without directly impacting on them as distinct individuals. Reliance only on politics may simply not be sufficient to deal with, say, the sale and export of national gas reserves, the allocation of land to interest groups, or other policy decisions that are detrimental to the well-being of a society. Chapter 10 addresses some of the arguments against judicial empowerment (which is considered here as citizen empowerment); enough to be said in this venue.

Future paths: Mark Graber asks several compelling questions, concerned with time and space, and traces possible paths for future study. The book’s reliance on two systems rightly raises questions as to the force of the theory in other liberal democratic polities, within and beyond the Common Law family. Further expansion to other systems could either validate this theory, present exceptions to its rule, or vitiate its force. My intuition is for the former, but more is needed to support this hunch. In the context of this spatial dimension, Graber posits a link between globalization and communication technology as factors that enhance domestic executives. I am not sure whether globalization enhances or in fact constrains some executives; much more study is needed in this context.     

Adding the temporal dimension to the spatial: as Graber rightly assumes, the book indeed offers a theory of contemporary executives. It is not a model that could be transposed as such onto alternative political climates such as the pre-administrative state or earlier versions of budding democracies. I find history an important element required for the understanding of contemporary structures and institutions; in line with historical institutionalism, history serves here as a basis for my analyses of current arrangements. Expansion towards the past (or perhaps the future too?) may offer rich alternative accounts of the ways executives operate in human societies.

The last path delineated in Graber’s comment leads to the application of the claims for internal tensions and fuzziness in analyses of other government branches, and law at large. This is a mammoth task. I hope that some of these paths are chosen by members of the academic community. In the near future, I am developing my argument for an active judicial role, and then hope to join others from other systems to enrich the comparative element. Similarly-minded scholars, concerned with any of the above paths, could congregate to develop our understanding of public power, public law, and law at large.   

My heartfelt thanks to the commentators. Hopefully, the debate over the nature of the executive branch is yet to develop, both in time and space. I hope the book, as well as this series of blogs, assist in reaching this goal.

Suggested citation: Margit Cohn, Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, Part 4: Tension and Legality: Response to Commentators, Int’l J. Const. L. Blog, Jul. 25, 2021, at: http://www.iconnectblog.com/2021/07/book-roundtable-on-margit-cohns-a-theory-of-the-executive-branch-tension-and-legality-part-4-tension-and-legality-response-to-commentators/


[1] Youngstown Sheet & Tube v Sawyer, 343 US 579 (1952).

[2] Cohn, A Theory of the Executive Branch: Tension and Legality, 125–126.

[3] Cohn, ibid, eg pp. 108–111, 123–124.

[4] Mark A. Graber, The Law Professor as Populist, U Rich L Rev 34 (2000) 373, 404.

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Published on July 27, 2021
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