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The Pragmatic Case for a Unitary Executive

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.

Congress is likely more comfortable giving blank checks to independent agencies because, in the absence of presidential control, representatives have more influence over them.

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.

Reader Discussion

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on September 03, 2020 at 08:23:27 am

McGinnis has offered another scholarly defense for a terrible concept that has been very recently weaponized by the right. Conservatives should be wary. They could get a unitary executive they disagree with ideologically. This is simply dangerous and bad for the Republic. The Chief Executive is powerful enough. There is no pragmatic case for a unitary executive. It is, in truth, irresponsible.

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Anthony Raymond Brunello
on September 03, 2020 at 11:16:42 am

I am surprised that 'Law and Liberty' would publish somethng that actually undermines the thinking of our Founders. They wanted the legislature to be supreme, and explicitly said as much. Bu dividing it into two houses they felt they had removed the spectre of legislative tyranny- but the legislature nevertheless should be supreme, As the executive branch grew in extent it would make sense constitutionally for the legislature to add checks on presidential power.

As for the 'pragmatic' reasoning, the Founders were very worried about extensive foreign involvement because it would, as Hamilton wrote, inevitably lead to the threat of tyranny, as defended by the author of this piece.

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Gus diZerega
on September 03, 2020 at 11:28:17 am

"Conservatives should be wary. They could get a unitary executive they disagree with ideologically."

HaHa! As in Wilson, FDR, Truman. LBJ, Clinton, W. Bush and Barack Obama.
The commenter is making the mistake McGinnis warned against, conflating the breadth of the president's Article I power, which is sometimes constitutionally debatable, with the question of who controls the exercise of that power, which should ever be constitutionally beyond peradventure. Each of the above-named Democrat presidents aggressively sought to expand his Article I powers beyond the clear confines of the constitution and was concerned with those confines only because they posed a political obstacle to presidential will. None was especially concerned with the matter which McGinnis discusses, that of who is constitutionally empowered to exercise Article I power.

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paladin
on September 03, 2020 at 12:06:08 pm

and I mean Article II
Even I know the difference

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paladin
on September 03, 2020 at 12:33:16 pm

Important post. Yet, worth to note, that in a way or other, the unitary executive doctrine or perception, is eroded by greater principle:

The rule of law. So, the president, is challenged over and over, relentlessly so, by federal officers, or, federal agencies, and surly by: injured parties, all in courts simply. The court then, may issue preliminary injunction, preventing the president, from carrying out further ( until final ruling) any undesirable policy. See for example, the Via Dolorosa of the president, concerning the "travel ban", as well the building of the wall ( southern wall) etc..... And that, can't be changed in democracy. No one is above the law. Rule of law, reigns supreme.

Thanks

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El roam
on September 03, 2020 at 15:11:03 pm

I must agree with Paladin (and McGinnis), we ought not to conflate the breadth of Executive power with the "control" of those exercising that power. Democrats need not fear that the Chief Magistrate's policy preferences will be stymied by the entrenched bureaucracy as that body of cubicle dwelling leftist sycophants will energetically and enthusiastically implement any and all initiatives advanced by a fellow leftist and that would include such patently unlawful diktats as DACA, "tranny bathrooms", etc.
Why would the Democrats support a unitary executive when, in the unlikely event (to their minds) a right leaning politician (or NON-politician as with The Trumpster) would assume the reins of the Executive Branch. No better, to rely upon (if not direct) the entrenched minions of leftist madness to counter the initiatives of the newly elected Executive while capitalizing on every opportunity to a) castigate and / or b) hamper the conservative Executive's attempts to rein in a rebellious bureaucracy.
Additionally, the Democrats may rest easily knowing the Conservative Executives have not evidenced a tendency to overtly or aggressively expand the reaches of executive power.

No, the trick is to be ever vigilant and oppose any further "enhancement" of Executive power.

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gabe
on September 03, 2020 at 16:45:16 pm

Well, Hell, if Gabe is going to agree with me, then, by damn, I'm going to agree with him!
He's right, the Democrats need not fear Republican possession of the Unitary Executive which the Democrats have always sought and exploited for themselves. The now not-so-modern Administrative State was built by Democrat presidents. It constitutes a great barrier to the unitary executive ambitions of Republican presidents and a built-in facilitator of Democrat abuse of the unitary executive. (Jefferson, in his fears, failed to foresee and Publius, in his reassurances, failed to discuss that extra-constitutional aspect on power.)

Furthermore, Republicans by nature and creed tend to respect constitutional restraint, separation of powers and the limitations of federalism, inhibitions which are alien to the modern Revolutionary Democrat Party.

All of which raises a point of departure between me and McGinnis (I just do not feel right unless I disagree with at least part of a McGinnis' analysis) over his premise, that constitutional originalists and living constitutionalists should agree with the unitary executive (rightly understood, which McGinnis does) because it fosters better government. That premise assumes that exponents of living constitutionalism embrace it because it makes government work better on behalf of the public. While that is what they say in public, I reject that assertion and argue, instead, that living constitutionalism, as Wilson expounded it, as FDR thrived on it and as LBJ expanded it, is SOLELY an expeditious means to the ultimate end of acquiring political power for its own sake, as its own end and for the purely personal benefits of material wealth and psychological reward which power brings to those who wield it.

And that is why Democrats warn of the dangers of a unitary executive when Republicans are in power and exploit it to the hilt when they are in power.

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paladin
on September 03, 2020 at 19:24:11 pm

Wouldn’t this conception of a unitary executive give far too much authority to political appointees and too little to generally more knowledgeable lifers? Also, it renders the executive unstable, as potentially its entire policy changes at once every four years —as if all members of the House of Representatives were up for election every two years.

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Michael Pakaluk
on September 04, 2020 at 15:55:11 pm

...as if all members of the House of Representatives were up for election every two years."

Gee, that IS funny! Policy will change in the Executive just as surely as policy in the Legislative changes so dramatically with a swing in the House. Oops, hey that DOES happen (or can happen) every TWO years.More to the point, "instability" is likely to be more prevalent, and more impactful in the Executive when a duly elected presented is prevented from implementing the policy initiatives he was elected to bring forth. One will hear, AND DOES at present, announcements of proposed changes by the Executive or his Cabinet Secretaries ONLY to be countered by the bureaucracy using media leaks, contentious and disputatious arguments / date / surveys.
How "stable" is that?

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gabe
on September 03, 2020 at 20:42:01 pm

It strikes me that we also need a companion essay addressing the role of Congressional oversight in curtailing (perceived) excessive executive action, both for issues beyond Article II criteria or just within bounds of supposed proper unitary executive control. Until these last four years I was woefully ignorant as to just how politicized this oversight was or had become, controlled in turn by the majority party in each house (sub-branch?). [Was there a rule change somewhere compared to a previous more open or joint process?] Besides the Shiff vs. Nunes type conflicts, we have Senator Graham threatening investigations that seem to not happen or go no where. Why is that? And we might think that both sides/ parties actually want efficient civil service performance towards their respective policy agenda, so why is reasonable civil service reform and/or denial of public sector unions not front and center for legislative attention?

I can even envision a 3rd L&L essay examining the potential for legislative and executive branches combining forces to correct judicial overreach, such as impeaching judges who clearly exceed authority to hinder national or foreign policy implementation of selected policy directives, or totally ignore well established constitutional interpretations. I am also a little surprised the Framers did not explicitly include language addressing judicial review, and the situation when the SCOTUS did declare legislation to be unconstitutional, that that did not immediately trigger the Congress taking up that "defective" law and revising or repealing it. That is, the body closest to "the people" should have been eager to fix something that they had created when it was judged to be unconstitutional. Wasn't honor, integrity, reputation, and shame even stronger as social forces back then than today?

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R2L

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.