Accountability & Administrative Structure
38 Pages Posted: 15 Oct 2008
Date Written: October 14, 2008
This Article was written for a symposium held by the Willamette College of Law entitled Presidential Power in the 21st Century. The Article is intended as a companion piece to The Accountable Executive, which will be published roughly contemporaneously in a symposium issue of the Minnesota Law Review. This Article begins by summarizing the major argument of The Accountable Executive: that a unitary executive is as likely (if not more likely) to diminish government accountability as to increase it. This is due in large part to the enhanced ability, under conditions of unity, of the President or his proxies to secretly influence decision-making and to manipulate data. Accountability and Administrative Structure expands on this argument in three respects. First, it situates the concern over unity's impact on information control and accountability within a broader discussion of accountability and administrative structure. Second, it supplements the functional constitutional analysis of The Accountable Executive with formal constitutional analysis and explains the link between the formalist and functionalist points. Specifically, the Article explains that unity proponents' core formalist point - that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks - not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control. Third, this Article focuses on two recent examples to demonstrate how unity can undermine accountability.
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