Publication Date

2007

Publication Title

University of Chicago Law Review

Abstract

Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold authority that they would have preferred to grant, making all concerned worse off We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. The main tradeoff or cost is that increasing credibility tends to diminish the President's control; in light of this tradeoff we examine the conditions under which these mechanisms succeed or fail, with historical examples.

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