The “Unitary Executive” Theory’s Contribution to the Deformation of the Constitution

[The second of four blog posts drawing on yesterday’s Hallows Lecture at Marquette Law School.]

My first blog post set forth the implicit but widely accepted “three buckets” picture of the government’s structure underlying the Supreme Court’s separation of power cases, under which if a federal entity is not part of Congress or part of the judiciary, it inevitably follows that it must be in the Executive Branch. The three buckets conception becomes deformative of the Constitution’s design when it is combined with another idea that is explicitly and repeatedly asserted by the President’s lawyers—the idea of the “unitary executive.”

Ever since the Reagan Administration, lawyers working in the Executive Branch have asserted that the President must have the authority to control everything that happens in the Executive Branch. This advocacy has paid off: The Supreme Court has embraced the idea nearly in full—from the Trump immunity decision to a series of decisions giving the President the authority to remove the head of administrative entities.

The justification for the unitary executive proposition is the vesting clause of Article II of the Constitution, which says that “[t]he executive Power shall be vested in a President of the United States.” The unitarians argue that this means all executive power must be subject to the control of a single person—the President. This is a lot of weight to put on the use of a singular indefinite article—”a”—in an introductory clause of an Article of the Constitution, but let that pass.

The point is that once the legal system encompasses an unstated idea—that the executive branch is a residual bucket into which all government activity flows that cannot be ascribed to the legislative or the judicial buckets—and this is combined with an expressly stated idea that everything in the executive bucket must be controlled by the President, what do you get? You get a federal government in which the President exercises enormous power.

Perhaps if we had a fairly narrow conception of the executive power—as, say, the power to determine when to initiate enforcement actions by the federal government—the unitary executive thesis would not be so destabilizing. Maybe the Federal Trade Commission, which has the power to sue to enjoin certain mergers, should lose its ability to perform this function without presidential control. But once the unstated picture of three buckets takes hold, and is combined with a zealous faith in the notion of a unitary executive, then everything in a very large and residual bucket falls within the discretionary control of the President.

But wait, you may be thinking, the Constitution mentions only three branches of government. If that is the foundation of the three buckets idea, what is the alternative? The answer may be “departments.” The Constitution mentions “departments” several times, but it does not consistently indicate that they must be subordinate to the President. At one point, it refers to “executive Departments”: The President has the authority to request the opinion in writing of “the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Conceivably, this betrays an assumption that all “Departments” are in the Executive Branch.

But if the unitary executive proponents are correct, it is puzzling, to say the least, why framers felt it was necessary to give the President explicit authority to request the opinion in writing of the heads of executive departments. According to the unitarians, the President can fire any principal officer in the executive branch at any time for any reason; if so, then there would obviously be no need to authorize the President to request their opinion in writing. (The President could simply say: “Your opinion, please, or you are fired.”)

In other places, the Constitution simply refers to “Departments” without the qualifier “executive.” Congress has the power to make all laws necessary and proper for carrying into execution the powers vested in any “Department.” And appointments of inferior officers may by law be vested in the “Heads of Departments.” The fact that “Departments” are in these instances not qualified by the modifier “executive” suggests that the framers did not rule out the creation of “Departments” having no specific location with the three principal branches.

All of which suggests another way to picture the structure of the federal government established by the Constitution: The Constitution clearly spells out the powers of what can be called the three “apex” institutions—the Congress, the President, and the federal Judiciary. But as to other federal institutions that may be created by Congress, pursuant to its powers under the Necessary and Proper Clause, it does not mandate any particular “location” of the entity in terms of the three named branches. To be sure, these entities must be established by a law, and they only have the power given to them by the laws that create them. And if Congress is wise, it will provide for judicial review of the exercise of power by these entities to assure that they do not exceed the powers given them by the law.

There is reason to believe that this alternative picture of the architecture of the federal government is the one that has prevailed through most of our history. Consider the creation of the Interstate Commerce Commission in 1887. Congress created the ICC in response to a practical problem. The Supreme Court had held that state railroad commissions have no authority to regulate the rates charged by railroads on interstate movements. So, unless these rates were to remain unregulated, it was necessary to create a federal commission.

Congress responded by establishing a five-member Commission, with members appointed by the President subject to Senate confirmation, serving for staggered six-year terms. No more than three Commissioners could be from the same political party, and Commissioners could be dismissed only for “inefficiency, neglect of duty, or malfeasance in office.” Complaints about railroad rates were filed by aggrieved shippers. The Commission’s resolution of these complaints was subject to review by the federal courts, which had exclusive authority to enforce the Commission’s orders.

Was this an unaccountable “Fourth Branch” of government, whose very existence violated the Constitution? No, the ICC was “multiply” accountable. Its powers and duties were established by law, enacted by Congress with the approval of the President. Its Commissioners were appointed by the President, with the advice and consent of the Senate. Its decisions and orders were reviewed by the federal courts, to assure that they complied with the law.

No one at the time agonized over whether this was an entity located in the Executive Branch, the Legislative Branch, the Judicial Branch, or no branch at all. If anything, it was regarded as a kind of specialized court, whose orders could only be enforced by an Article III court. As a practical solution to a pressing problem, the ICC served as the model used by Congress in creating a slew of federal regulatory agencies, including the Federal Reserve Board, the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, National Labor Relations Board, and the Federal Energy Regulatory Commission.

The Supreme Court is currently on a path to holding that the “for cause” limitation on removal of the commissioners of these various agencies is unconstitutional, because under the “three buckets” picture of the structure of the federal government, they all belong in the Executive Branch, and under the unitary executive theory, all such commissioners must be removable at the will of the President. If the Court continues down this path, all these specialized regulatory bodies will become, effectively, departments of the Executive Branch. The Court seems uncomfortable, as it should be, with the idea that this means the independence of the Federal Reserve Board will be destroyed and the President will henceforth be in charge of setting interest rates.

But the Court should be worried about much more. Most of these commissions make decisions that have profound implications for economic actors who need some assurance of stability in government policy. However imperfectly, commissions composed of multiple members from both political parties serving staggered terms are designed to promote stability in policy relative to what one would get under a regime of presidential executive orders.

Moreover, consider that the three buckets model has resulted in extravagant claims for presidential authority over other types of government entities, such as the National Park Service, Smithsonian Institution, and the John F. Kennedy Center for the Performing Arts (now renamed the Trump Kennedy Center). By the same logic, the three buckets model would seem to allow the President to dictate the routes served by Amtrak, a federal corporation, or the rates for electricity charged by the Tennessee Valley Authority, another specialized federal entity.

If this seems like extremism, it is, and we can thank President Trump for revealing the ultimate implications of the unstated three buckets model of the federal government.