98 Pages Posted: 6 Jul 2011 Last revised: 28 Jul 2011
Date Written: May 19, 2011
This article considers two increasingly important, but poorly understood, case studies that involve the Executive, on its own initiative, relinquishing control over essential national-security responsibilities by way of institutional redesign. The Executive already enjoyed unfettered discretion with respect to (1) the CIA financing and developing new technologies for its spies and (2) the President scrutinizing foreign investments that threaten U.S. national security. Nevertheless, it created In-Q-Tel, a private venture-capital firm, to incubate intelligence technologies. It also empowered the inter-agency Committee on Foreign Investment in the United States (“CFIUS”) to investigate and impose conditions on foreign entities seeking to acquire controlling interests in strategically important American firms.
In creating In-Q-Tel rather than allowing the CIA to direct R&D internally, and in delegating to an inter-agency committee sensitive responsibilities that Congress entrusted directly to the President, the Executive incurred a host of legal, political, and organizational constraints on its ability to control these two critical functions. These constraints would never have attached absent the reorganization efforts.
Delegating responsibility to In-Q-Tel and CFIUS, as opposed to retaining it within the CIA and the White House, respectively, limits presidential discretion in contexts where external legal checks are largely disabled and where political stewardship appears to be self-defeating. Whether these self-imposed limitations were the Executive’s intent all along or simply an unintended consequence of institutional reorganization, the ways in which In-Q-Tel and CFIUS bear the marks of novel forms of accountability and self-constraint are innovative, compelling, and suggestive of a new chapter of thinking about bureaucratic design, separation of powers, and the optimal amount of Executive control.
Keywords: [Administrative Law, National Security Law, Separation of Powers, Executive Authority, Unitary Executive, Institutional Design, Privatization, Constitutional Law, Intelligence, Counterterrorism, Economic Security, Bureaucracy, Political Accountability]
Suggested Citation: Suggested Citation
Michaels, Jon D., The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond (May 19, 2011). Virginia Law Review, Vol. 97, No. 4, pp. 801-898, 2011; UCLA School of Law Research Paper No. 11-23. Available at SSRN: https://ssrn.com/abstract=1879420