39 Pages Posted: 20 Sep 2006
Date Written: September 2006
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counter-partisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples.
Suggested Citation: Suggested Citation
Posner, Eric A. and Vermeule, Adrian, The Credible Executive (September 2006). U Chicago Law & Economics, Olin Working Paper No. 309; Harvard Public Law Working Paper No. 132; U of Chicago, Public Law Working Paper No. 139. Available at SSRN: https://ssrn.com/abstract=931501 or http://dx.doi.org/10.2139/ssrn.931501