The Fatally Flawed Theory of the Unbundled Executive
Steven G. Calabresi
Northwestern University - School of Law
Nicholas K. Terrell
Northwestern University School of Law
November 12, 2008
Minnesota Law Review, Forthcoming
Northwestern Public Law Research Paper No. 08-40
This paper responds to a working paper by University of Chicago Professors Christopher R. Berry and Jacob E. Gersen called "The Unbundled Executive" which makes a normative argument for plural co-executives over the unitary executive. The authors imply their paper is relevant to the ongoing debate in the United States over whether or not our Constitution creates a strongly unitary executive. Our paper sets out ten reasons why Berry and Gersen are wrong and why Alexander Hamilton was right on the question of the unitary executive. We argue that Berry and Gersen's paper is not relevant to the unitary executive debate and that a unitary executive is in fact preferable to a system of co-equal co-executives. We discuss rational ignorance and the cost of acquiring information, accountability, coordination, energy in the executive, preference intensity, cycling, Buchanan and Tulloch's ideas in The Calculus of Consent, the difficulty of retaining a veto with plural co-executives, and the true lessons to be learned from the experience in the States. We conclude that Berry and Gersen have raised interesting and provocative questions but that they reach the wrong conclusion. A unitary executive is preferable to co-equal co-executives in a separation of powers, federal system like our own.
Number of Pages in PDF File: 49
Keywords: Unitary Executive, Bundled Executive, Presidential Power, Independent Agencies, Independent Counsels, Public choice, Theory
JEL Classification: K19, K39
Date posted: November 17, 2008
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