Informal Governance of the United States

Abstract

The United States faces vexing problems. Yet many people—indeed, a majority of Americans—think the government is broken. The prospect that the federal government can tackle the many challenges the country faces, from attacks on election administration to faltering infrastructure and a deadly pandemic, seem dim. In the face of these profound challenges, policymakers may have to turn to more innovative approaches. Informal governance, which lacks written or formal authorization, organization, and rules, may become the last best hope for solving intractable problems and breaking the gridlock and polarization in Washington. Although the United States prizes a written Constitution and the formal rule of law, informal governance of the United States dates back to President George Washington’s creation of and reliance on a cabinet, an institution nowhere mentioned in the Constitution or then-existing federal law, to deal with national crises facing the early United States. This Article examines two more recent examples of informal governance of the United States—an informal group of physicians known as the Wolverines who orchestrated the strategy of social interventions in the United States during the pandemic and an informal group of Republicans and Democrats, business and labor groups, who joined to promote election integrity during the 2020 U.S. elections, including respect for the final election results. By studying these case studies, this Article identifies the promises and perils of informal governance of the United States. The Article sets forth a constitutional theory based on the Tenth Amendment to justify the general practice of informal governance, but also identifies valid concerns about the lack of transparency and accountability, and potential for abuses and even illegality that informal governance may foster. The Article closes by offering several reforms or safeguards to prevent informal governance from devolving into rogue operations or a shadow government.

Keywords: informal governance, Constitution, pandemic, election integrity, response to COVID, governance

JEL Classification: K10, K19