Excellent analysis. The odd thing to me is that "Unitary Executive" was the pet rock of the conservative legal community long before Trump appeared on the scene. I get why Trump and his supporters want to enhance Presidential power, but I always thought it odd that conservatives would want this. After all, why would conservatives want Democratic Presidents to have complete control over the NLRB and FTC? That would be the nightmare scenario for the Chamber of Commerce. Nonetheless the Federalist society made this their darling.
Right-wing enthusiasm for UET started with the Reagan Presidency and the expectation that only an expansive version of unilateral presidential authority would enable right-wing presidents to significantly curtain the work of the administrative state. A new book by William Howell and Terry Moe offers the most persuasive analysis.
Very useful. Thanks. I get that UET is attractive to conservatives as a way to curtail the administrative state, but it seems to me that conservative advocates are blind to the inevitability that there will, in the future, be Democratic Presidents who can use a UET to completely take over bodies like the NLRB. Given the state of politics in the Reagan era--when the Democrats seemed like the would be out of power forever--UET made political sense. I am not sure that the current advocates for UET have thought this through. (That said, they may simply believe their constitutional theory without regard to the consequences). It sort of reminds me of progressive demands that the Senate abandon the cloture rules. The focus was on short term advantage without thinking through the huge long term risk if a simple majority was sufficient.
I think the far right perceives that, structurally, our election system works disproportionately in favor of the GOP, and because it's easier to destroy than to create, UET is still a good long-term strategy.
One would hope that SCOTUS had learned that POTUS is hell bent on attaining complete authority with all departments headed by LOYALISTS and to allow any more control than already given would be enabling dictatorship to reign!
I've now read the Howell & Moe article you recommended. As a result, I somewhat sympathize with "the devils" - the conservatives foisting the most extreme vision of the UET on us - because, as the H&M article details, the administrative state is largely a progressive creation staffed by progressives and adept at fostering progressive rules, etc. BUT the administrative state was created through legislation; thus, the way to reform it is through legislation, not a dictator's decrees. Unable to capture significant legislative majorities, presidents of both parties try to achieve their objectives by unilateral action, sidelining the legislature - the Article I branch that, to me, is the Number One branch. That Trump, having won the popular vote by 1.5 percentage points and garnering one of the slimmest House majorities in history, should claim a mandate legitimizing his right to exert unfettered authority is preposterous.
What I don't understand is how anyone with even a passing familiarity with our constitution could seriously support the extreme UET, wherein the president can ignore the laws and appropriations of the legislative branch and the rulings of the judicial branch. It's as though they think they can wave a magic wand and disappear Articles I and III, reducing members of Congress to - at best - courtiers and denying the courts' ability to rule on the legality of a president's actions. Huh? Trump 1.0 induced a sense of discombobulation; Trump 2.0, vertigo and a feeling that, like Alice, I have slipped through a mirror into a nonsensical but dangerous Underland.
p.s. Hats off for the title of your article as published in The Regulatory Review: "The Unbearable Lightness of the Unitary Executive Theory" - excellent allusion to an excellent novel.
It may make us less sympathetic to "the devils" if we recall that one of the purposes on which the Philadelphia convention agreed--and that Article I was intended to operationalize--was the creation of a national government competent to deal with national challenges beyond the capacity of individual states to deal with on their own. Progressives, in this context, are simply the elected and appointed officers who believe in problem-solving government. Eisenhower, in this sense, was a progressive; even Nixon was surprisingly so. That doesn't mean all progressive solutions will be great or that every policy diagnosis will be accurate. But the impulse to use government to serve the public interest is profoundly in line with the Constitution. "The devils"--loving your phrase there--are trying to incapacitate government, which is a hard argument to sell to the public if they are candid. But having said that, I agree with your essential point--namely, that the cure for inadequate or ill-conceived legislation is amendment or repeal by the legislature.
Ah, yes! I'm ashamed to confess that I've allowed the dominant narrative re "progressives" to exert "reflexive control" over my thinking. Wisconsin is my home state and current residence - and, relevant here, the birthplace of both the Progressive and (now seemingly, conversely) the Republican political parties. I fondly recall, as a child, learning about "Fighting Bob" LaFollette and the "Wisconsin Idea." So, yes, progressivism is not embodied merely by its current incarnations, e.g., AOC, Bernie Sanders et al, but, as you wrote, by the desire to "serve the public interest" and "to deal with national challenges" as both Eisenhower and Nixon did. The current administration *says* that's what they're doing, but they are really amassing power to serve their interests and to impose their will on the rest of us - a majority that largely rejects many of their extreme actions.
Anyway, thank you for both of your thoughtful replies. I don't want to take up your time, but am surely grateful for the teaching moments you have provided. I discovered an interest in law, specifically legal reasoning, when I was honored to work with Neil MacCormick, who served on my dissertation committee. But I am neither a lawyer nor a legal scholar - nor a scholar of presidential history or law!, so I am humbled by your attention to my amateur thoughts. Again, thank you.
Is there some reason no one seems to want to point out that, except in limited respects (conduct of foreign policy, of military activities IN TIME OF WAR (which only Cong can declare), . . .), the role of the "EXECUTive" branch is limited to "faithful[] EXECUT[ion of] the laws"? Throughout my lifetime until now, what it meant for a pres to come to office with a "mandate" -- any meaningful definition of which requires both a significant MAJORITY of votes but also a significant increase in his or her party's representation in Cong, not a slight plurality in the popular vote and small losses in Cong -- was that he or she had a strong hand in presenting Cong with LEGISLATION to follow a new path. NO "mandate" could warrant the Chief Executive directing agencies in his branch, charged by statute to implement, administer, or enforce legislation, not to do so, or to deprive them of resources appropriated by Cong to do so, because he or she does not support the POLICIES underlying or explicitly stated in the statutes to be enforced or administered.
Excellent explication of "the unitary executive." I've encountered this term repeatedly over the past decade, but Prof. Shane's explanation and application to independent agencies has helped me understand both the limited and the expansive definition of the 'theory'.
Excellent analysis. The odd thing to me is that "Unitary Executive" was the pet rock of the conservative legal community long before Trump appeared on the scene. I get why Trump and his supporters want to enhance Presidential power, but I always thought it odd that conservatives would want this. After all, why would conservatives want Democratic Presidents to have complete control over the NLRB and FTC? That would be the nightmare scenario for the Chamber of Commerce. Nonetheless the Federalist society made this their darling.
Right-wing enthusiasm for UET started with the Reagan Presidency and the expectation that only an expansive version of unilateral presidential authority would enable right-wing presidents to significantly curtain the work of the administrative state. A new book by William Howell and Terry Moe offers the most persuasive analysis.
Very useful. Thanks. I get that UET is attractive to conservatives as a way to curtail the administrative state, but it seems to me that conservative advocates are blind to the inevitability that there will, in the future, be Democratic Presidents who can use a UET to completely take over bodies like the NLRB. Given the state of politics in the Reagan era--when the Democrats seemed like the would be out of power forever--UET made political sense. I am not sure that the current advocates for UET have thought this through. (That said, they may simply believe their constitutional theory without regard to the consequences). It sort of reminds me of progressive demands that the Senate abandon the cloture rules. The focus was on short term advantage without thinking through the huge long term risk if a simple majority was sufficient.
I think the far right perceives that, structurally, our election system works disproportionately in favor of the GOP, and because it's easier to destroy than to create, UET is still a good long-term strategy.
One would hope that SCOTUS had learned that POTUS is hell bent on attaining complete authority with all departments headed by LOYALISTS and to allow any more control than already given would be enabling dictatorship to reign!
I've now read the Howell & Moe article you recommended. As a result, I somewhat sympathize with "the devils" - the conservatives foisting the most extreme vision of the UET on us - because, as the H&M article details, the administrative state is largely a progressive creation staffed by progressives and adept at fostering progressive rules, etc. BUT the administrative state was created through legislation; thus, the way to reform it is through legislation, not a dictator's decrees. Unable to capture significant legislative majorities, presidents of both parties try to achieve their objectives by unilateral action, sidelining the legislature - the Article I branch that, to me, is the Number One branch. That Trump, having won the popular vote by 1.5 percentage points and garnering one of the slimmest House majorities in history, should claim a mandate legitimizing his right to exert unfettered authority is preposterous.
What I don't understand is how anyone with even a passing familiarity with our constitution could seriously support the extreme UET, wherein the president can ignore the laws and appropriations of the legislative branch and the rulings of the judicial branch. It's as though they think they can wave a magic wand and disappear Articles I and III, reducing members of Congress to - at best - courtiers and denying the courts' ability to rule on the legality of a president's actions. Huh? Trump 1.0 induced a sense of discombobulation; Trump 2.0, vertigo and a feeling that, like Alice, I have slipped through a mirror into a nonsensical but dangerous Underland.
p.s. Hats off for the title of your article as published in The Regulatory Review: "The Unbearable Lightness of the Unitary Executive Theory" - excellent allusion to an excellent novel.
It may make us less sympathetic to "the devils" if we recall that one of the purposes on which the Philadelphia convention agreed--and that Article I was intended to operationalize--was the creation of a national government competent to deal with national challenges beyond the capacity of individual states to deal with on their own. Progressives, in this context, are simply the elected and appointed officers who believe in problem-solving government. Eisenhower, in this sense, was a progressive; even Nixon was surprisingly so. That doesn't mean all progressive solutions will be great or that every policy diagnosis will be accurate. But the impulse to use government to serve the public interest is profoundly in line with the Constitution. "The devils"--loving your phrase there--are trying to incapacitate government, which is a hard argument to sell to the public if they are candid. But having said that, I agree with your essential point--namely, that the cure for inadequate or ill-conceived legislation is amendment or repeal by the legislature.
Ah, yes! I'm ashamed to confess that I've allowed the dominant narrative re "progressives" to exert "reflexive control" over my thinking. Wisconsin is my home state and current residence - and, relevant here, the birthplace of both the Progressive and (now seemingly, conversely) the Republican political parties. I fondly recall, as a child, learning about "Fighting Bob" LaFollette and the "Wisconsin Idea." So, yes, progressivism is not embodied merely by its current incarnations, e.g., AOC, Bernie Sanders et al, but, as you wrote, by the desire to "serve the public interest" and "to deal with national challenges" as both Eisenhower and Nixon did. The current administration *says* that's what they're doing, but they are really amassing power to serve their interests and to impose their will on the rest of us - a majority that largely rejects many of their extreme actions.
Anyway, thank you for both of your thoughtful replies. I don't want to take up your time, but am surely grateful for the teaching moments you have provided. I discovered an interest in law, specifically legal reasoning, when I was honored to work with Neil MacCormick, who served on my dissertation committee. But I am neither a lawyer nor a legal scholar - nor a scholar of presidential history or law!, so I am humbled by your attention to my amateur thoughts. Again, thank you.
Is there some reason no one seems to want to point out that, except in limited respects (conduct of foreign policy, of military activities IN TIME OF WAR (which only Cong can declare), . . .), the role of the "EXECUTive" branch is limited to "faithful[] EXECUT[ion of] the laws"? Throughout my lifetime until now, what it meant for a pres to come to office with a "mandate" -- any meaningful definition of which requires both a significant MAJORITY of votes but also a significant increase in his or her party's representation in Cong, not a slight plurality in the popular vote and small losses in Cong -- was that he or she had a strong hand in presenting Cong with LEGISLATION to follow a new path. NO "mandate" could warrant the Chief Executive directing agencies in his branch, charged by statute to implement, administer, or enforce legislation, not to do so, or to deprive them of resources appropriated by Cong to do so, because he or she does not support the POLICIES underlying or explicitly stated in the statutes to be enforced or administered.
Excellent explication of "the unitary executive." I've encountered this term repeatedly over the past decade, but Prof. Shane's explanation and application to independent agencies has helped me understand both the limited and the expansive definition of the 'theory'.
Thank you for your comment -- I'm delighted you found the essay useful.