Cognitive Competence in Executive-Branch Decision Making

The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals empowered to make choices on behalf of the nation. In governance, sometimes the problem is legal or institutional. But sometimes a person is the problem. Taking up this view, this Article investigates how legal scholarship can expand its understanding of executive-branch decision making by adapting insights from neuroscience about how human cognition works. Individuals matter because every instance of executive-branch overreach can be located in a particular decision taken by a specific person. Attending to cognitive functions associated with individual judgment and choice offers a new way of understanding governmental decision making by broadening understanding of the government’s decision makers. The key to promoting effective governance, this Article argues, requires renovating how the law understands individual choice and determines who should have the legal authority to make decisions that affect the nation. Adopting a neuroscientifically informed perspective on decision making both produces a more accurate, descriptive understanding of how executive-branch decisions are made and destabilizes existing presumptions that a person is qualified to make decisions of national importance solely because she or he is legally authorized (appointed or otherwise selected) to do so. Who decides matters because, in the end, the difference between good and bad governance often comes down to the choices made by the people who are in charge