The Antifascist Roots of Presidential Administration

86 Pages Posted: 2 Jul 2020 Last revised: 14 Oct 2022

Date Written: January 1, 2022

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 anti-fascist. 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.

Suggested Citation

Rosenblum, Noah, The Antifascist Roots of Presidential Administration (January 1, 2022). 122 Columbia Law Review 1 (2022), Available at SSRN: https://ssrn.com/abstract=3635821 or http://dx.doi.org/10.2139/ssrn.3635821

Noah Rosenblum (Contact Author)

New York University School of Law ( email )

40 Washington Square South
310F
New York, NY 10012-1099
United States

HOME PAGE: http://www.noahrosenblum.com

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