Common Good Presidential Administration

The Public Interest State Beyond Technocracy

“The end of the Executive is to … appoint, instruct, superintend, and support its functionaries, as effectually to protect person and property, to dispense justice, to uphold religion, to provide for the country’s expenses, to promote and extend its trade, to maintain its place in the political world, and to make it victorious and formidable.”

St. John Henry Cardinal Newman, ‘Who’s to Blame?’ in Discussions and Arguments on Various Subjects (London: Basil Montagu Pickering, 1872).

“I've got a pen, and I've got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward”

President Barack Obama, January 2014.

A significant portion of contemporary classical natural law scholarship involves probing foundational questions about law and political authority: their purpose, justification, and how we should conceive of the proper relationship between the precepts of natural law and posited law. These foundational questions remain of critical importance. However, if the renewed interest in the classical legal tradition is to have vibrancy and longevity, it must also probe how the precepts of the tradition are best made concrete under contemporary political conditions. In other words, classical jurists must speak to what the tradition has to say about our current legal and political questions and debates.

We think one of the most significant questions deserving close examination is what the classical legal tradition has to say about the appropriate place of the executive-led administrative state in contemporary constitutional orders. Given the political situation in the United States, this is a particularly opportune moment to reflect on how the infrastructure of presidential administration can be geared toward the common good. Of course, because President-Elect Trump’s political party will soon control both the House of Representatives and Senate, he will prudently put a great deal of focus on securing his aims through legislation. Nonetheless, the fact is that although the executive branch derives most of its power from statutes, those statutes are, under the conditions of the administrative state, often drawn in broad terms. The consequence is that the executive branch’s functions are not merely ministerial. Rather executive officers are clothed with immense power, and capable of taking a wide range of initiatives for the common good.

We have argued elsewhere, and at length, several foundational propositions that we need not re-argue here: (1) The administrative state is not a modernist innovation. (2) The administrative state ought not be confused with the so-called “headless fourth branch,” the putatively independent agencies, but instead, in the American constitutional scheme rightly understood, constitutes the body of which the President is the head. The administrative state consists of officials exercising the executive power that is vested solely in the President, who are therefore subject to plenary removal and direction by the President. (3) The main guarantors of the rule of law in the executive-centered administrative state are legal presumptions that the executive acts for the public interest. These presumptions include background principles of thick procedural legality that are both read into statutes (including the Administrative Procedure Act) and operative of their own force. (4) Finally, constructing and maintaining executive-centered government is particularly conducive to, and prudent for, pursuing the common good under the socio-economic conditions of extreme complexity typical to highly developed states, such as the United States. Under these conditions, the executive-guided administrative state has become the main locus and vehicle in the state for the provision of goods like peace, justice, and abundance that are central to classical constitutional theory.

In this post, we bracket those arguments and take them as given, in order to make a single, simple point: existing statutes offer ample leeway for executive action oriented to the common good, leeway that has been left largely unused for essentially ideological reasons. Common good presidential administration is already at hand, authorized by our law. All that is required is for the executive to broaden its focus beyond mere economic technocracy. Indeed, as we will see, recent regulatory initiatives by Presidents Obama and Biden have already blazed the trail for thick conceptions of the common good to be embedded in the mission of the executive-led state.

In an important recent paper, Professor Jodi L. Short conducted a thick descriptive overview of the nearly 1,300 “public interest” standards in federal statutory law, most of which take the form of statutory grants of authority to administrative agencies. Focusing on case studies of agency adjudication under four prominent examples of such standards (three at the federal level and one at the state level), Short offered striking conclusions:

“First, [the study finds that] agencies applying statutory public interest standards exhibit rational and predictable patterns that comport with rule-of-law values of transparency and consistency. Second, the study finds that agencies rarely consider what might be characterized as ‘common good’ or ‘community’ values in their public interest analyses unless such considerations are mandated by statute, and that agencies tend to discount such considerations even when statutorily required. Third, in terms of substantive conceptions of the public interest, the study reveals that in most contexts studied, economic arguments are the most-raised and most-accepted justifications for why a particular outcome is in the public interest.”

Professor Short notes that several different reactions to, and normative evaluations of, this situation are possible. (Her own views on the “moral turn” in administrative law recently featured in The New Digest). Our reaction is that nothing in the law, the nature of bureaucracy, or the pragmatic realities of governance requires that the President and the President’s agencies limit themselves to “economic” arguments or to essentially technocratic conceptions of the public interest, at least where open-ended public interest standards are in play, so that relevant statutes do not command a narrow focus on the economic. Indeed, to underscore Short’s crucial findings, it is not just that “the federal agencies, in particular, g[i]ve relatively little consideration to substantive values that are explicitly within their statutory authority,” but that agencies have tended to discount “common good or community values … even when [such considerations are] statutorily required.” That agencies often limit themselves to economic considerations, even when statutes require that they do otherwise, is plausibly an artifact of a particular, background technocratic ideology and conception of the administrative mission, not a command of the law. That ideology is not somehow hardwired into the administrative state, which in other times and places has pursued other aims. Recent Democratic administrations have pioneered the pursuit of thicker conceptions of the ends of regulation; by the same token, current law is sufficiently capacious and flexible to allow presidential administration and administrative action to pursue the common good, understood in traditional terms.

A few illustrative examples:

Non-quantitative regulatory criteria. One major lever the executive enjoys in directing the civil service and administrative state is its ability to govern from the center: issuing policy directions, reviewing their work, and amending or countermanding their choices. Readers will no doubt be familiar with ‘big-ticket’ policy directions like the kind of executive orders that commit agencies to make regulations consistent with qualitative criteria set by the President. For example, President Barack Obama added a requirement that proposed regulations be consistent with non-quantitative criteria such as “equity, human dignity, and distributive impact.” So too, in January 2021, President Biden issued a memorandum directing the formulation of “concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Among other things, the memorandum directed that the regulatory process should better ensure that proposed regulations “appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”

What is sauce for the goose is sauce for the gander. If Presidents Obama and Biden may pursue their thick conceptions of the common good through regulatory oversight, so too may President-elect Trump pursue his. As others have noted, these regulatory orders go beyond the myopic quest for greater economic efficiency and deregulation beloved of right-liberal “conservatism,” implicating thicker substantive aims. A sufficiently motivated common good presidential administration could, where legal discretion permits, deploy similar mechanisms to embed traditional concern for ends such as the intrinsic value of human life from the womb to natural death; the protection of the natural marital family; protection of nature in its full sense, apart from merely utilitarian considerations; protecting the intrinsic dignity of the human body; promotion of stable family life and child-rearing; prohibition of euthanasia and surrogacy; promotion of appropriate subsidiarity; and the protection and promotion of religious worship and religious values. Principles and values such as these could be embedded in the bureaucratic policymaking process at all stages, helping them become the default moral vision for officials. The Office of Information and Regulatory Affairs could, without changes to governing law, be refashioned as a dicastery for the promotion of classical conceptions of right governance, according to traditional principles.

Appointment and Removal. Personnel is policy. One of the more obvious tools the executive can use to steer the administrative state to worthy ends is power over the appointment and removal of its ranks. Presidents and Prime Ministers enjoy broad legal authority to dismiss and appoint officials who help set the policy direction of Government departments and other agencies funded by the public purse. This gives the executive ample scope to appoint personnel dedicated to aligning the work of their regulatory subject-matter to a particular moral vision. This will be familiar to people if they think about financial or environmental agencies whose work, depending on whether they have a pro or de-regulatory leadership, can have immediate material consequences.

But it is worth stressing that the ability of the executive to shape the direction of the administrative state pierces into every conceivable policy area, some that are more obscure and subtle in their impact. From the leadership of Arts and Culture councils that offer patronage to up-and-coming artists and fund museums, boards that set and enforce medical ethical standards and the proper limits of medical practice and what constitutes ‘do no harm’, educational standards boards that help set and revise national curricula, civil and human rights enforcement bodies that have interpretative discretion over how to uphold and enforce vague and morally-laden human rights texts - the executive can appoint officials committed to injecting the institutional technology of the bureaucracy with a normative vision for what ends it should pursuer under its statutory mandates. The moral vision these bodies choose to align their technocratic know-how and social capital behind when it comes to the point of art, the proper ends of medical practice, state-funded education, and the true foundation of fundamental human rights, can impact the pedagogical formation of a society’s future artists, students, professionals, and citizens. It goes without saying that this formation can serve as a promising contribution to the public good or be deeply inimical to it.

Low-visibility routines and high-visibility symbolism. The executive’s ability to orient the bureaucracy to certain ends and to close others extends to more quotidian activity, like setting the kind of internal training sessions thousands of civil servants must attend or pass online. It also extends to setting the inchoate, background, moral ‘mood music’ civil servants will imbibe and be expected to (publicly) act harmoniously with in the course of their work, an ethos that might be reflected in, for example, the beliefs, symbols, and cultural events they are instructed to recognise and give prominence to; the flags and banners they are encouraged or instructed to fly or update their social media with on public and religious holidays. Again, the broader point here is that, like deciding who will staff the apex of the administrative state, the kind of training and ethos civil servants will be exposed to is not set in stone. Rather, it is a product of political and moral choices communicated by the executive across the administrative state. As much as statutes passed by the legislature, these activities send a broader message about the goals and commitments of the polity, and what moral and cultural ideas civil servants, and by extension citizens, ought to value and internalize.

Money and civil society. Finally, consider how in both presidential and parliamentary systems, executive officials enjoy broad discretion (sometimes unreveiwable discretion) in grant-making and other mechanisms for allocating funds, in ways that shape the policy direction of nongovernmental organizations of many shapes and sizes. These extensive powers are invariably exercised to ensure moral and ethically motivated conditions are attached to the receipt of public funds that flow outside the governmental sphere. For example, executives in many countries regularly disburse enormous sums of money to the NGO sector to perform charity or advocacy work, or private sector firms to supply goods and services like the design and construction of public buildings. Moreover, many arts, cultural, and educational bodies are heavily reliant on public funds disbursed by the executive to nurture emerging generations of artists and scholars, and to curate public goods like museums and theatres. These bodies have potent ability to channel and morph the direction or tone of a polity’s creative, artistic, and cultural endeavours. Put simply, executive lucre can have an impact on the tenor of civil society and its priorities, the aesthetics of our public spaces, and our wider cultural milieu to the extent it is shaped by publicly funded and nurtured education, art, music, theatre, and film.

Moral and ethical choices by the executive are, inescapably, deeply woven across all these funding activities. How might an executive dedicated to promoting worthy ends via the administrative state proceed? It might, for example, make prudent choices in this domain by making grant funding to charities or NGO’s conditional on their work and mission statements being genuinely consistent with human dignity, the value of human life, and the common good, rather than corrosive of these things. It should ensure the important task of subsidizing artistic and culture projects is done with due regard for beauty and truth, and the desire to avoid the blasphemous, prurient, nihilistic, and pointless. It should endeavor to make economic support for universities and colleges conditional on deep respect for religious exercise and the rigorous academic pursuit of truth, which are utterly indispensable to the common good. It might also strive to ensure public works are constructed with an eye toward beauty and avoiding ugliness that can – in the words of a report issued by an independent government commission co-chaired by the late Sir Roger Scruton - destroy a “sense of place, undermine the spirit of community, and ensure that we are not at home in our world”

In all these areas, of course, the legal question is what particular statutes provide and what sorts of considerations they permit, require or forbid executive-directed administrative action to incorporate. There are familiar debates in administrative law about when statutes should be read to permit, forbid, or require cost-benefit analysis or, conversely, consideration of non-economic values. Those questions will have to be hashed out at retail, statute by statute and case by case. But given the ubiquity, breadth and flexibility of public interest standards across statutory law, there is every reason to think that there is far more scope for executive or presidential administration oriented to the common good and to traditional and classical principles of governance than the largely economic orientation of previous administrative regulation has acknowledged.