The Antifascist Roots of Presidential Administration
72 Pages Posted: 2 Jul 2020 Last revised: 7 Oct 2020
Date Written: June 15, 2020
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 democracy responsible and antifascist. These previously overlooked developments have important consequences for contemporary debates about executive power in general and the role of the president in administration in particular.
The Article demonstrates that presidential administration was not a haphazard occurrence, but the culmination of a longstanding project to make democracy efficacious and accountable. It traces the roots of presidential administration back through the executive reorganization acts of the New Deal to a world of Progressive Era executive-centered reform thought. The Article shows how the New Dealers on the President’s Committee on Administrative Management drew from and adapted this Progressive Era tradition as they sought to simultaneously empower and constrain the president. At the heart of this story is a remarkable reversal: where Progressive Era reformers rejected formal constitutionalism in general and the principle of separation of powers in particular, New Deal reformers embraced both. This volte-face was connected to the need to make the president strong while guarding against fascism.
Three normative consequences flow from this forgotten origin story. First, it challenges unitary accounts that posit an uninterrupted tradition of maximalist executive power. Second, it provides a historical and doctrinal foundation for the “internal separation of powers” school of Article II jurisprudence. And finally, it generates an anti-fascist litmus test that any adequate theory of Article II should have to meet.
Antifascism, this Article shows, was the condition on which the institutions of presidential administration were actually imagined. Fidelity demands we grapple with that commitment today.
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