The Unitary Executive: A Collection of Recent Writings
The oral argument in Trump v. Slaughter fast approaches, and the one in Trump v. Cook looms on the horizon. The first case asks whether the President may fire a member of the Federal Trade Commission, the second whether the Court should stay a district-court order barring the President from firing a member of the Federal Reserve Board of Governors. Both cases will put into question, directly or indirectly, the validity of Humphrey’s Executor, the decision that blessed the so-called “independent agencies.” (Whether Humphrey’s Executor should be overruled is expressly one of the questions presented in the Slaughter case). More broadly, the pair of cases will in effect pose and perhaps finally settle the questions whether and to what extent our constitutional law does indeed embody a “unitary executive.”
In light of all this, I have taken the liberty of collecting my recent essays on the unitary executive, viewed from a classical legal perspective and presented in the order in which they were written. In brief, my view is that the Myers decision, the foundation-stone of the unitary executive, didn’t go far enough; and I offer a maximalist version of unitary executive theory — hyper-Unitarianism, if you will. Read on for more!
How Myers failed to follow through on its own logic, and what a maximalist theory would look like:
Don’t confuse the question of the hierarchical authority of the President over the executive branch with the question of the substantive scope of executive power:
Far from being a threat to republican liberty, the unitary executive is its guardian, especially as against the threat that “independent” executive officials will create a plurality of petty tyrannies. So thought “the celebrated Montesquieu,” as Madison called him:
Why stop with the unitary executive? Congress and the Judiciary are the other two branches of government and must stay in their lanes and assert the power that is theirs alone. Therefore, Congress cannot constitutionally delegate rule making authority to agencies that are completely controlled by the executive. Take all federal regulations which are supposedly expressing the will of Congress but promulgated and subject to the will of the executive and throw them in the trash. Congress: your job is to write the laws, so stop being so lazy and trying to pass off your business to agencies controlled by the executive. As for the Courts, you get to say what the law is. That’s it. You lack the power and right to direct the executive how to or whether to enforce it. Stay in your lane, too. Of course, this is a reductio ad absurdam of the overly literal construction of the constitution and the unitary executive theory that goes with it. We should reject it or if the logic is compelling, adopt a better constitution that avoids the ridiculous results.