The Antifascist Roots of Presidential Administration

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 antifascist. 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. While they have been right to focus on the Committee, they have misunderstood its program. This Article uses untapped sources and overlooked historical context to advance a new reading of the Committee’s report. It demonstrates that presidential administration was the culmination of a longstanding project to make democracy efficacious and accountable, showing how the New Dealers on the President’s Committee drew from and adapted an older Progressive Era tradition. At the heart of this story is a remarkable reversal: where Progressive Era reformers reject-ed formal constitutionalism and the principle of separation of powers, the New Dealers embraced both. This volte-face was connected to the need to empower the president while guarding against fascism. Anti-fascism thus became a core component of presidential administration, realized through checks on the executive and internal and external separation of powers. This revisionist history has three immediate consequences for contemporary law and legal scholarship. First, it raises a pair of challenges to the unitary theory of the executive. Second, it provides a historical and doctrinal foundation for the competing “internal separation of powers” school of Article II jurisprudence. And finally, it motivates an antifascist litmus test, which offers a new perspective on current debates about the fascism of the Trump presidency and can help assess recent proposals for executive branch reform.