Those who want space to pursue the common good in many of the ways that Vermeule promotes should be attracted to originalism.
The theory of the unitary executive is gaining traction in American law. That view of the Constitution asserts that the president controls whatever power is given to the executive branch of the federal government. As a result, the president must be able to dismiss his subordinate executives at will. Otherwise, these officials will be responsive to others or to themselves, not to the chief executive.
The unitary executive is persistently, sometimes willfully, confused with the notion that the president enjoys large residual constitutional powers. But the scope of presidential powers is distinct from the control over whatever those powers are. As Justice Samuel Alito said at his confirmation hearing, the first question “is the scope of Executive power: [W]e might think of that as how big is this table, the extent of the Executive powers.” That was distinct from a different question, “[W]hen you have a power that is within the prerogative of the Executive, who controls [it]?” The unitary executive is concerned only with the second question.
A majority of the Supreme Court justices now accept the essence of the originalist case for the unitary executive. This term in Seila Law v. Consumer Financial Protection Bureau, the Court held that insulating the director of the CFPB from presidential removal was unconstitutional because it offended the separation of powers, saying bluntly, “The President’s Executive Power generally includes the power to supervise—and if necessary remove—those who exercise the President’s power on his behalf.” While the Court did not overrule previous cases that had upheld statutory insulations of executive officials from presidential removal, it narrowly confined their ambit, raising questions about whether they might be overruled in the future.
The originalist case for the unitary executive was powerfully made in Seila and in the academic work of my colleague, Steven Calabresi. But there is also a more pragmatic case for the unitary executive that should help persuade the non-originalist justices who were in dissent in Seila. First, in the modern world, almost all matters in which the federal government is involved have foreign policy implications. For instance, the greatest threat to the United States is the continuing rise of Communist China. To counter this threat, the United States must muster all its military, economic, and technological might. Such a total commitment involves the work of essentially all agencies of government. And it is the president who must be responsible for the executive’s foreign policy decisions because he alone has a broader perspective and intelligence tools available to protect the nation and navigate international relationships.
As Linda Sun and I describe in a forthcoming paper, a recent antitrust case illustrates the folly of allowing independent agencies to make their own decisions that undermine our foreign policy and national security. In Federal Trade Commission v. Qualcomm, Inc., the FTC sued Qualcomm for allegedly violating antitrust law with its “no license, no chips” policy, which required phone makers to license Qualcomm’s patents if they wanted to purchase the company’s smartphone chips. But the Department of Justice intervened in court to argue that the suit posed a threat to national security because Qualcomm’s competitive position as a domestic chipmaker was important to maintain for the nation’s safety.
Worse still, the chief beneficiary of the FTC’s suit would be the Chinese company Huawei. The Trump administration is focused not only on making sure that this company is excluded from the United States market but also on trying to exclude it from other markets as well. No nation, let alone the United States, still the most important force for global security, can run a coherent foreign policy if different government agencies are able to make decisions that undermine that policy’s objectives. The president must have authority to prevent a suit like the FTC’s from being brought.
This kind of problem is not limited to the FTC or antitrust law. The Federal Communication Commission, an independent agency, also makes decisions that involve Huawei and thus the foreign relations of the United States. The Securities and Exchange Commission is considering how Chinese companies should be audited. Energy independence is a goal of United States foreign policy to prevent it from being beholden to any foreign energy suppliers, and the decisions of the Federal Energy Regulatory Commission, another independent agency, directly affect our energy supply.
Second, even apart from foreign policy, the effects of an agency’s decisions cannot generally be confined to its own area of law. How the FCC uses its discretion to promote low-cost internet services is central to delivering education to low-income families, particularly in a time of pandemic. How the Securities and Exchange Commission regulates initial public offerings directly affects competition and tax revenues. Thus, the work of agencies will not be coherent or efficient if done in separate silos but must instead be coordinated. The only plausible coordinator is the president.
In fact, this argument precisely parallels the pragmatic argument for an expansive reading of the Commerce Clause urged by living constitutionalists. Regulation of commerce cannot be limited to interstate trading among the states, the argument goes, because all economic activity has interstate spillover effects. As a result, Congress must be able to regulate those effects through its national power. While this parallel should not convince originalists of the correctness of the unitary executive, it should help with principled living constitutionalists. The same kind of spillovers that, in their view, make a narrow conception of the Commerce Clause an obstacle to coherent and effective government, do the same to any theory justifying a divided executive branch. Moreover, the obstacle is far greater today than it was in 1789.
The president does effectively coordinate agencies that he controls through the Office of Management and Budget and specifically the Office of Information and Regulatory Affairs, but he does not have such leverage over the independent agencies that may resist his orders without consequence. As a result, independent agencies work more easily at cross purposes. For instance, policy toward cryptocurrency—a key emerging technology of finance—is incoherent, as agencies like the SEC, IRS, and Commodities Future Trading Commission disagree on fundamental questions of legal classification, such as whether a cryptocurrency is a security or a commodity. Presidential control could sort out such confusion, and reducing uncertainty of regulation boosts economic growth.
Pragmatic arguments against presidential control emphasize the danger of presidential power. But this focus rests on conflating the question of the scope of executive power with the question of presidential control over its exercise. Reducing the former may well be a sensible idea (classical liberals like me favor it), but reducing the latter is not well aligned with curbing executive aggrandizement. Companies and individuals can be trampled by executive power, regardless of whether it is exercised by a dependent or independent executive agency.
Indeed, permitting an agency to be independent may well lead to greater power in the executive. Congress is likely more comfortable giving blank checks to independent agencies because, in the absence of presidential control, representatives have more influence over them. Delegations to act “in the public interest”—an absurdly vague and power-enhancing term—are in fact the hallmark of independent agencies like the FCC.
If the pragmatic arguments for unitariness are so strong, and stronger than they were in 1789 because of the greater interconnectedness of the world and the greater importance of foreign policy, why do liberal living constitutionalists tend to oppose the unitary executive? One reason is that independent agencies tend to make bureaucrats more powerful, because the counterweight of a president’s program—the most powerful single force in our politics—is less strongly felt on such agencies than those under his direct control. Bureaucratic power may suit the left, because while presidents alternate between Republicans and Democrats, the bureaucracy in the modern era leans permanently left.
Still, if we consider constitutional law under a veil of partisan ignorance, the unitary executive is one place where the arguments of originalists and living constitutionalists reinforce one another. Both should hope for more results like that in Seila.