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05/05/2018

Ilya Somin on the Unitary Executive and Modern Law
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Rethinking the Unitary Executive.  It begins:

If there is one thing that most conservative and libertarian originalists agree on, it is that executive power under the Constitution must be "unitary." That doesn't necessarily mean that the president's power is unlimited, or even particularly broad. It does mean that whatever authority the executive has must be controlled by the president. He is free to hire, fire, and issue orders to all other executive branch officials, as he sees it - except in a few cases specifically noted in the Constitution, such as the requirement of Senate confirmation for cabinet officers.This issue came up recently when the Senate Judiciary Committee voted to approve a bill that would protect special Counsel Robert Mueller from being fired by President Donald Trump - the man whose activities and assciates Mueller is charged with investigating. The bill passed the Committee by a 14-7 vote. But several GOP senators - including some, like Ben Sasse, who are no fans of Trump - voted "no," citing constitutional considerations based on unitary executive theory.

For a long time, I too accepted the theory of the unitary executive. But I am no longer convinced. In this post, I try to explain where I went wrong, and why I hope others will reconsider the issue as well.

Unitary executive theory is sound up to a point. But it does not hold true in an era when much of the power wielded by the executive branch is authority that the original meaning of the Constitution never gave the federal government in the first place. Allowing such a massive concentration of authority in the hands of one man is dangerous. And it does not nothing to enforce the original meaning of the Constitution.

In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that "The executive Power shall be vested in a President of the United States of America." It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution. Much evidence from the Founding era suggests that this is indeed how things were understood at the time, though some scholars argue otherwise.

If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be very strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one particularly noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution - and the dominant understanding of the first 150 years of American history - the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919. Giving the president control over the waging of the federal War on Drugs is giving him a power the federal government was never supposed to have in the first place. ...

This is an important challenge for originalism as a practical methodology, and an outstanding illustration of the challenge.  I think one response might be: don't do any more harm (in the sense of departing from the Constitution's design) while we try to fix or at least mitigate the departures that have occurred.  Another might be: the unconstitutional accretions of presidential power aren't related to the special counsel (Professor Somin addresses this suggestion later in his post).