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This article examines the understanding of executive power in the debates at the founding of the Fifth Republic in 1958. The examination discovered a concept of executive power quite different from the real executive power revealed in the history of the Fifth Republic. The framers of the constitution intended to place the prime minister at the head of the executive power and to shield him from removal by the President of the Republic. The direct election of the president, brought about by the problematic constitutional amendment of 1962, provided the legitimacy for the de facto dominant role of the president apart from the two cohabitation periods.

This article examines the relationships between constitutionalism and public administration through a comparative textual analysis of the constitutions of the Fifth French Republic and the United States. Particular emphasis is placed on the exceptional powers of the presidents of the two countries, the influence of the executive power on the respective legislative processes, and the practical significance of the divided executive power in France compared to the formally unified American executive. These diverse comparisons are brought together by the theme of how the constitutional traditions in the two countries both promote and inhibit the capacity for action of the administrative state.

This paper argues that the responsible use of administrative discretion is the most fundamental ethical issue for American bureaucrats; more fundamental than such highly visible issues as conflict of interest and financial disclosure. The argument is supported by references to academic literature, examples in administrative practice, and an analysis of the purpose behind the establishment of the Senior Executive Service in the Civil Service Reform Act of 1978. Although the responsible use of administrative discretion is not a problem confined to the United States, the formal separation of powers in the American Constitution gives the problem a peculiarly American orientation. Despite managerial doctrines on "unity of command," American bureaucrats receive conflicting "signals" from competing institutions of government. This problem does not stem from misconduct on the part of anyone, but from the primary legitimating symbol of American politics, the Constitution of the United States. Specific examples of this problem are given from such areas as the EPA Superfund, passive restraints in automobiles and surface mining regulations.