Partisan Politics, Legal Realism, and the Myth of the Unitary Executive

 By Eric Segall

"Only in an Authoritarian Regime is the President Above the Law"

                                                                                    Professor Victoria Nourse

At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's. 

What makes these decisions so fascinating (and wrong) is that the Constitution's text does not  support such a view, there is no persuasive historical evidence underlying the theory, and as a matter of policy it is a terrible idea to give one person so much power, as the Framers surely understood. What most explains these decisions, as even McGinnis implicitly concedes, is politics pure and simple. Libertarian and conservative judges want to limit the administrative state to better free businesses from regulation and so they do so regardless of whether there is any legitimate legal reason for believing the President has to retain such king-like authority. The title of McGinnis's piece is revealing: "Will the Court Tame the Administrative State?"

As McGinnis discusses, the most important separation of powers case this term is similar to previous Roberts Court opinions second guessing and overruling Congress's desires. In Collins v. Yellen, the Court held, despite Congress's clear intent to the contrary, that the President had to be able to fire the Director of the Federal Housing Finance Agency without any constraint. The enabling statute creating this agency allowed the President to fire the Director only for cause but the Court held this restriction unconstitutional. As McGinnis says, this decision came as no surprise because the Roberts Court previously held in Seila Law v. CFPB that the President's ability to fire the Director of that agency had to be unlimited. Justice Kagan did concur in the judgment in Collins but she made clear that, like Chief Justice Roberts in the abortion case June Medical v. Russo, she was doing so solely on grounds of precedent, and that she still fully disagreed with Seila Law.

The Court also held this term that federal patent law judges whose decisions were final within the executive branch (but could be reviewed in court) acted unconstitutionally because the Director of the Patent Office could not review those decisions. The Court re-wrote the law to give the Director that authority. McGinnis, a self-avowed textualist/originalist strongly supports all of these decisions.

The Constitution says nothing about who has authority to fire federal officers and under what conditions and is equally silent about how the administrative state is to be structured. Some proponents of the unitary executive theory have suggested that it is consistent with the parts of Article II that say the "Executive Power shall be vested" in a President and that he "shall take care that the laws be faithfully executed." Neither of these vaguely worded clauses, however, provides support for judicial second guessing and vetoing of Congress's decisions regarding how federal officers are to be fired. Professor Nourse has demonstrated that point beyond argument.

As far as the Constitution's original meaning is concerned, the unitary executive theory fares no better. As Professor David Driesen has argued:

The Framers and Ratifiers of the United States Constitution unanimously embraced the goal of establishing a permanent Republican government. Many of the debates on the Constitution revolved around figuring out how to use government structure to avoid autocracy— 'despotism' in the language of the period. The Constitution contains only one removal provision, and it authorizes the Senate to remove the President and other government officials after impeachment by the House, not presidential removal. Accordingly, Alexander Hamilton opined in the Federalist Papers that removal of officers requires the consent of the Senate. He explained that the Constitution sought to prevent appointment of “obsequious instruments” of presidential “pleasure.” The Constitution sought to substitute loyalty to the law and the Constitution for loyalty to the head of state by requiring all officers of the government to swear an oath to protect and defend the Constitution.

And Professor Peter Shane has said this about the unitary executive and original meaning:

One agency well illustrating Congress’s intent to insulate [executive] administration from complete presidential control was the Sinking Fund Commission, proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. In the Sinking Fund Act of Aug. 12, 1790, Congress authorized open market purchases of debt, in the form of U.S. securities, under the direction of the President of the Senate, the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General.... [T]wo of the five Commission members—the president of the Senate (that is, the vice president) and the chief justice—were not removable by the president at all....The Act required presidential agreement to such purchases of U.S. debt as the Commission might approve, but gave the president no power to initiate the purchase of debt except at the Commission’s initiative. It is impossible to reconcile the structure and function of the Sinking Fund Commission with the theory that the First Congress thought the president entitled to complete control, via the removal power, over all executive branch administration. 

Professor McGinnis nods towards history in general ways in his blog post but does not seriously try to defend the unitary executive theory with specific evidence. In the absence of textual or historical support, McGinnis does transparently (to his credit) explain why conservatives, libertarians, and Republicans embrace the unitary executive: 

But there is also a more realist perspective on what the Roberts Court is doing. Creating a unitary executive branch under the President’s control provides a greater counterweight to the bureaucracy, which leans decidedly to the left....Republican appointees face much greater difficulty getting things done than Democratic appointees. They cannot just ignore their bureaucrats, because they need their expertise and manpower to issue regulations and bring enforcement actions. As a result, political officials tend to compromise with the bureaucracy to have an easier life. The President’s power to remove his subordinates creates a counterbalancing force.

This partisan explanation for the unitary executive theory carries even more force when one examines the Justices who currently embrace it. All of the conservative justices except Barrett served in the executive branch under Republican administrations and three of them did so during the Reagan-George H.W. Bush years. Roberts, Kavanaugh, and Barrett were all lawyers who worked on the GOP side in Bush v. Gore. 

All six conservative Justices likely agree with McGinnis that

insofar as the bureaucracy leans left and influences interpretation regardless of the political party of the President, a realist view suggests that this development [of the unitary executive theory] is also good for friends of liberty. The judiciary is much more mixed ideologically than the bureaucracy, being carefully and individually selected by Presidents of different parties....[The unitary executive ] theory]cut[s] down the power of a bureaucracy that tends to be unfriendly to liberty.

And there we have it. The ultimate aim of those who support the unitary executive is not to vindicate constitutional text or history but to arm judges with the tools to dismantle the administrative state in the name of economic liberty. As a policy matter, I am not here to say that value judgment is right or wrong (though I think it's wrong). But as a matter of constitutional law, the makeup and funding of the executive branch was left by the founders mostly to Congress, not unelected life-tenured judges. 

For better or worse, Congress has created a huge apparatus for the President to use to wield his power. To advocate for judicial second-guessing of those laws intended to diffuse authority throughput the executive branch is to concentrate enormous power in the hands of one, not many. Unsupported by text and history, this idea in motivation and execution is simply to make regulation harder over time. In this corner of constitutional law, the Justices aren't just imposing their values on the rest of us, they are doing so because of partisan politics--namely the Republican Party's alignment with big business, dark money, and the economic interests of the one percent.