Abstract
One of the most widespread contemporary assumptions in the discourse of separation of powers is that while the president tends to have preferences that are more national and stable in nature, Congress is perpetually prone to parochial concerns. This deeply ingrained assumption not only pervades legal scholarly treatment of the administrative state, but it is also used to frame debates about the division of foreign relations powers and the proper scope of judicial review of executive branch agency regulations. This Article examines the three explanations commonly given for the president’s more national outlook and introduces institutional considerations that reveal them to be more myth than fact: (1) The president has a broader geographic and population constituency than members of Congress; (2) the fact that members of Congress are elected frequently means that they are more susceptible to special interest or parochial legislation than the president; and (3) the president tends to care more about the overall health of the national economy than Congress does. This Article shows that under the winner-take-all system of our electoral college, the president will often have an incentive to cater to a narrower geographic and population constituency than that of the median member of Congress. Furthermore, this Article also contends that while the preferences of individual members of Congress may often be shortsighted and parochial, the collective wisdom of these parochial members of Congress will often produce policy outcomes that are more national and public-regarding than those produced by any single elected official. Finally, this Article critically analyzes the implications of debunking the fable in three areas of public law where it has been particularly pervasive: the unitary presidency model, judicial deference to executive branch agency decisions, and the allocation of international trade authority.
