Executive Power and the Administrative State
Executive Power and the Administrative State
A Reading List
We thought it might be a helpful moment to offer a reading list of pieces on executive power, presidential power in particular, and the broader administrative state, all from a classical legal perspective. The list is subdivided into three categories: theoretical groundings, history, and legal applications. Enjoy!
I. Theoretical Groundings
The foundation of executive power, in my view, is that the Many, seeking protection from exploitation by the Few, appeal to and empower the One. “When that the poor have cried, Caesar hath wept.”
For an old and quirky but deeply interesting book in the same neighborhood, see “Monarchy or Money Power” by R. McNair Wilson.
I’ve explored this key theme in two papers, both available here:
You’ve heard of the “unitary executive”? How about the hyper-unitary executive! Two issues, frequently conflated, are the jurisdiction of the administrative state, on the one hand, and the legitimate fear of a “headless fourth branch” on the other. But the administrative state need not be headless; rather it is the body of the President, who is properly understood to have plenary power to remove all agents exercising executive power and to direct them in the performance of their duties.
Professor Jodi Short recently contributed an interesting overview of the “moral turn” in administrative law:
II. History
In various spaces you will encounter odd claims about how the administrative state began with Woodrow Wilson, or FDR, or is a hideous creation of the Frankfurt School, or whatnot. In fact it is a feature of Western legal institutions time out of mind — the memory of man runneth not to the contrary. (And Catholic jurists above all should know why!)
The Mirror of Princes tradition thought deeply about executive power, the prudence of rulers, and ragion di stato:
III. Legal Applications
Our own Prof. Conor Casey on the legal presumptions that shape and constrain executive power:
An effort of mine on the same topic — legal presumptions, executive power, and the separation of powers:
The literature is full of affirmative arguments for the separation of powers in general and the separation of functions within the executive in particular. What is the affirmative argument for their combination?
But does the rule of law require the separation of powers? It does not.
As Justice Kavanaugh recently urged, don’t over-read the overruling of Chevron:
Canadian lawyer Kerry Sun with an instructive treatment of administrative discretion from a classical perspective:
The Comstock Act, abortion, and administrative law from a natural-law perspective - complete with the highly significant (other) middle name of one of the authors:
Special bonus! An episode of the excellent Ius Commune podcast:
Quite a collection