The University of Chicago Law School Faculty Blog

The Unbundled Executive

In a recent paper, Chris Berry and I analyze what we call the unbundled executive: a plural executive regime in which discrete authority is taken from the President and given exclusively to a directly elected executive official. Imagine a directly elected War Executive, Education Executive or Agriculture Executive. We show that the standard arguments used to justify a single executive in the United States actually justify a specific type of plural executive, not the single executive structure favored in Article II. 

Suppose there is only one single elected executive who has responsibility for all j policy dimensions in a jurisdiction. Elections require voters to make a single elect-reject decision.  Because of the crudeness of the electoral sanction, it is a weak way for voters to control the single executive on any particular policy dimension. Voters must make a decision on a bundle of policy dimensions. As a result, the official can enact special interest-friendly policies or their personal preferences on some dimensions, as long as she enacts voter-friendly policies on a sufficient number of dimensions to secure reelection. Instead of electing one executive to oversee all policy dimensions, suppose a jurisdiction elects several executives each of whom is exclusively and exhaustively responsible for one dimension. In this unbundled regime, citizens need not aggregate judgments across multiple policy issues at election time. An executive who enacts an interest-group-friendly policy in her single domain will not be able to placate voters with voter-friendly policies on other issues.

Too Much Local Government?

Indiana Governor Mitch Daniels recently created the bipartisan Commission on Local Government Reform. In recent remarks, the Governor noted: “For its size and population, Indiana has far too much local government. Indiana has some 2,700 local units of government authorized to levy property taxes. Governing these units are more than 10,700 elected officials, 1,100 of whom assess property. Few other states have as much local government.”

Perhaps not; but there are more than 500,000 elected officials in the United States, 96 percent of whom serve in local governments. The remarks are correct insomuch as electoral density—the number of elected officials per capita or per governmental unit—varies greatly from place to place. The most electorally dense county has more than 20 times the average number of elected officials per capita.

How would we know whether Indiana or any other state has too many local governments or too few? What is the benchmark for deciding whether there too many elected officials in a jurisdiction or not enough?

Chevron as a Voting Rule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain.  Doctrinally, there are many ambiguities and uncertainties about the nature of the inquiry at the first and second steps of Chevron, including questions about the admissibility and weight of various legal sources. More recently, the United States v. Mead decision and its successors have produced added complexity, and some confusion, by requiring an elaborate legal inquiry to determine whether Chevron applies in the first place. In practice, recent evidence suggests that Chevron has increased overall deference to agencies, but also that Chevron’s effect varies markedly with the ideological and political preferences of the judges who apply it.

These problems arise, in part, from a dubious premise of the Chevron enterprise, one that should be rethought. The dubious premise is that the legal system should adopt a doctrinal solution – the Chevron rule – for what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous. In this paper, Adrian Vermeule, and I explore an alternative, which is to adopt an institutional solution to the institutional problem. The institutional solution is to cast Chevron as a voting rule, thereby institutionalizing deference to administrative agencies. The precise details of the voting rule might vary, and we discuss different versions. To motivate the discussion, however, imagine a voting rule stating that where a litigant challenges agency action as inconsistent with an organic statute, the agency would prevail unless the judges, asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajority vote – say, by a 6-3 vote on the Supreme Court, or by a 3-0 vote on a court of appeals panel. Our thesis is that a voting rule of this sort would produce more benefits and fewer costs than does the doctrinal version of Chevron.