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Wednesday, April 23, 2014

The American Presidency: An Invitation to Detrimental Decision Making

I’ve previously described some serious disadvantages from a presidency that gives all of the executive power to a single person—the denial of representation to the half of the public that supported the other candidate and the promotion of partisan conflict as both sides fight to secure control of the Oval Office. Might these disadvantages be offset by the benefits of an energetic executive who can act decisively and with dispatch?

That might have been true for the first 150 years or so of the United States, but the energetic executive of Federalist No. 70 no longer meets the demands of the modern presidency. Indeed, a one-person presidency invites decision making harmful to the country.

As Congress has transferred much of its policymaking power to the executive branch, the nature of presidential power has been transformed. The Constitution envisions a president with secondary responsibility for the creation of national policy and primary responsibility for the execution of national policy. However, the contemporary president enjoys primary responsibility for both the creation and execution of policy.

This assumption of policy-creating responsibility by the president allows national policy to be made in the absence of a robust debate among multiple decision makers who bring different perspectives to their decision making. It may make sense to have a single person who can act decisively and with dispatch when the person is an executor of policy made by others. But the founding fathers correctly reserved policy making for multiple-person bodies such as Congress and the Supreme Court. As Woodrow Wilson observed, “ The whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man.”

Indeed, when it comes to making policy, there is much truth to the maxim that two heads are better than one. Studies by economists, psychologists, and other researchers demonstrate that shared decision making works better than unilateral decision making. As the example of George W. Bush waging war against Iraq illustrates, a single decision maker can make very poor choices. Multiple executives from different parties would bring the different perspectives and problem-solving skills that make for better decision making. Multiple executives would make more good choices and fewer bad choices than single presidents.

To be sure, too many cooks can spoil the broth. As Congress illustrates, very large groups can become quite dysfunctional. But small groups generally make better decisions than do individuals or large groups.

Of course, even single presidents do not make decisions in isolation. They consult with members of their cabinet and staff, so they enjoy many of the benefits of group decision making. Nevertheless, there is a big difference between deciding alone after consulting with advisers who are inclined to reinforce one’s inclinations and sharing decision making with others who are inclined to challenge one’s inclinations. Consider in this regard how different would be decisions from a Supreme Court of one justice and eight law clerks.

Don’t we need a single president to keep gridlock out of the Oval Office? While the framers were concerned about dissension and rivalry between multiple executives, there are good reasons to think that multiple executives could develop a meaningful willingness to cooperate with each other. That will be the topic of my final post in this series on the presidency. 

[cross-posted at orentlicher.tumblr.com]

Posted by David Orentlicher on April 23, 2014 at 08:51 AM in Constitutional thoughts | Permalink


Good point about the current Supreme Court being driven in large part by the views of Justice Kennedy. And what's important is that we get a convergence around the middle of the Court. If we had a balance of perspectives in the executive branch, we would see more moderate policies from administration to administration, rather than swings between the right and the left. With one justice, the Court could be driven from the far right, the far left, or the middle of the political spectrum, depending on the views of the one justice.

As to the comparison between Supreme Court decision making and presidential decision making, I do not claim that all forms of shared decision making are superior to all forms of individual decision making. It depends how the decision making is structured. In my final post, I'll discuss how I think shared decision making should be structured in the executive branch so it works well.

Posted by: David Orentlicher | Apr 23, 2014 11:14:08 AM

"Consider in this regard how different would be decisions from a Supreme Court of one justice and eight law clerks."

It seems our Supreme Court these days usually goes whichever way Kennedy goes. So we kind of have that already.

And is Supreme Court decision-making better than Presidential decision-making these days? I would not say so. I think the campaign finance decisions are atrocious.

Posted by: JDEswq | Apr 23, 2014 10:39:31 AM

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