Document Type

Article

Publication Title

Columbia Law Review

Abstract

This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws out the consequences of these overlooked developments for presidential administration today. The Article takes inspiration from the turn to history in Article II scholarship and jurisprudence. In search of legitimating foundations, champions of presidential administration have embraced the work of the New Deal–era President’s Committee on Administrative Management. This Article uses untapped sources and overlooked historical context to advance a new reading of the Committee’s report, showing how it drew from and adapted an older Progressive Era tradition. At the heart of this story is a notable reversal: Where Progressive Era reformers rejected formal constitutionalism and the principle of separation of powers, the New Dealers embraced both to empower the President while guarding against fascism. This history raises a pair of challenges for the unitary executive theory, while providing a historical and doctrinal foundation for the competing “internal separation of powers” school of Article II jurisprudence. It also motivates an “antifascist litmus test,” which can help assess proposals for executive branch reform.

First Page

1

Volume

122

Publication Date

2022

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