Rosenblum on The Antifascist Roots of Presidential Administration @narosenblum @NYULaw

Noah A. Rosenblum, New York University School of Law; Columbia University Department of History, has published The Antifascist Roots of Presidential Administration. Here is the abstract.

We live, it is said, in an age of presidential administration. This Article uncovers the intellectual foundations of presidential control of the administrative state, 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 administration reconciled a strong executive with democratic norms by embracing separation of powers with the aim of making democracy responsible and antifascist. These previously overlooked developments have important consequences for contemporary debates about executive power in general and the role of the president in administration in particular. The Article shows that presidential administration was not a haphazard occurrence, but the culmination of a longstanding project to make modern democracy efficacious and accountable. It traces the roots of the office of the president back through the executive reorganization acts of the New Deal to a world of Progressive Era executive-centered reform thought. It then shows how the New Deal reformers on the President’s Committee on Administrative Management drew from and adapted this Progressive Era tradition. At the heart of this story is a stunning, if partial, reversal: where Progressive Era reformers rejected formal constitutionalism in general and the principle of separation of powers in particular, New Deal reformers embraced them. This consequential shift was closely connected to the need to distinguish and protect emergent American presidential-ism from fascism. Recovering this forgotten origin story has significant normative consequences. It establishes the fundamental importance of internal separation of powers and other antifascist adaptations of the modern administrative state. The Article thus raises a historically-grounded challenge to those who maintain that direct presidential control of administration is the only constitutionally or normatively desirable public law arrangement. It also proposes an antifascist litmus test that any adequate theory of Article II should have to meet. Anti-fascism, the Article shows, was the condition on which the institutions of the modern, empowered American presidency were actually imagined. Fidelity demands we grapple with that commitment today.

Download the article from SSRN at the link.