Article

The Unbundled Executive

Christopher R. Berry

Assistant Professor of Public Policy, The University of Chicago

Jacob E. Gersen

Assistant Professor of Law, The University of Chicago

We are grateful to Bruce Ackerman, Rachel Brewster, Ethan Bueno de Mesquita, Bob Cooter, Rosalind Dixon, John Ferejohn, David Fontana, Heather Gerken, Tom Ginsburg, Dan Ho, Cheng-Yi Huang, Alison LaCroix, Daryl Levinson, John Matsusaka, Richard McAdams, Drew Navikas, Anne O’Connell, Eric Posner, Adam Samaha, Lior Strahilevitz, Madhavi Sunder, Cass Sunstein, Matthew Stephenson, and Adrian Vermeule for helpful comments and conversations. Johanna Chan, Monica Groat, Stacey Nathan, and Peter Wilson provided excellent research assistance. Financial support was provided by the John M. Olin Foundation and the George J. Stigler Center for the Study of the Economy and the State.

That the US Constitution establishes a single executive is incontrovertible as a historical matter; a plural executive was debated and rejected. As a matter of constitutional theory and institutional design, however, this conclusion is far from inevitable and likely incorrect. The convention era debates about single versus plural executives exhibited fundamental confusion about the relationship between numerosity in the executive, the structure of executive authority, and core democratic values like accountability, coordination, and uniformity. This confusion is understandable given the extraordinary pedigree of single executives in constitutional theory, including but not limited to Locke, Blackstone, Hamilton, and Montesquieu, and the historical fact that most plural executive regimes were ineffectual councils. But the conventional justifications for rejecting plural executives are powerful weapons against only some very specific forms of plural executive regimes. Unfortunately, this early confusion has been replicated over and over in more recent debates about the unitary executive and the scope of executive authority.

This Article articulates and analyzes the possibility of what we call the unbundled executive. The unbundled executive is 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 a partially unbundled executive is likely to perform better than the completely bundled executive structure attendant in the single executive regime. By better, we mean that the standard arguments used to justify a single strong unitary executive in the United States—accountability, energy, uniformity, coordination, and so on— actually justify a specific type of plural executive, not the single executive structure favored in Article II. Our thesis then is both unusual and controversial in that there has been virtually no serious theoretical challenge to the single executive structure for more than a century. The entire unitary executive debate assumes a cornerstone that we suggest is incorrect and consequential.

TABLE OF CONTENTS