Abandoning Presidential Administration: A Civic Governance Agenda to Promote Democratic Equality and Guard Against Creeping Authoritarianism

Abstract

Upon assuming the presidency, Joe Biden is likely to enjoy limited congressional support for his legislative agenda. Democrats believe they have a good playbook for this situation: “presidential administration.” Coined by now–Justice Kagan, presidential administration endorses the use of unilateral executive action to advance the president’s policy priorities. We argue that presidential administration is unlikely to be successful. More to the point, we fear it may prove dangerous, further legitimizing practices that enable and embolden future authoritarians far more adroit with the tools and language of power than Donald Trump.

We propose that Biden instead practice (and preach) “civic administration,” diffusing authority away from the office of the president in ways that empower the federal bureaucracy, state, local, and tribal officials, and civil society. These other institutions and actors would serve as (1) partners in advancing social and economic policy and (2) potential counterweights if and when the White House pushes reckless initiatives. Biden should of course lead federal administrative agencies to take lawful action on the major issues of the day, from the pandemic, to climate change, to social inequality. But these and other actions should be taken in ways that recalibrate executive power, amplify and leverage the talents and resources of any number of competent actors outside of the West Wing and Cabinet, and remain mindful of the dangers of presidential unilateralism.

Emerson & Michaels Final Article Pages_no bleed

About the Author

Assistant Professor of Law, UCLA School of Law; Professor of Law, UCLA School of Law.

By LRIRE