The unitary executive is one place where the arguments of originalists and living constitutionalists reinforce one another.
In his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation. These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare. As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.
In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa. Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power. After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.
In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused. The notion of the unitary executive takes the scope of executive power as given and holds only that the President must control all his subordinates in the exercise of whatever power he can constitutionally exercise. The unitary executive represents the best reading of Article II’s simple declaration that “The executive power shall be vested in a President of the United States of America.” Moreover, the unitary executive promotes governmental accountability, as the President cannot sidestep responsibility for the agents he appoints.
On the issue of the unitary executive the debate should again separate the question of policy from that of structure. Even if Republican candidates disagree with net neutrality, they should be asked if they nevertheless applaud the President’s pressure on so-called independent FCC to adopt it. In my view, the next administration would do well to build on President’s Obama intervention and to rein in the independent agencies more generally, requiring them to engage in the cost benefit analysis that constrain the non-independent agencies.
But many Republicans have too long confused strengthening the unity of executive with increasing the scope of its power. Perhaps because they thought the Republicans had a better chance of holding the Presidency than Congress during the last half century, they have themselves been complicit in aggrandizing executive power. For instance, they defended such weak constitutional claims as the President’s inherent right to impound funds against Congress’s express direction and pushed to provide greater discretion to executive agencies to interpret congressional statutes under Chevron. Now that the Republicans are not under the illusion about their likely supremacy in Presidential elections, we can hope that their interests will reinforce their commitment to constitutional government—one where the President is a faithful agent of Congress in domestic affairs, except when a congressional mandate violates a constitutional provision.