Is the Unitary Executive Theory Any More Sensible Than The Unitary Supreme Court Theory?
In my latest Verdict column, I revive an idea that Professor Lisa Tucker and I first championed over a decade ago based on a bill that was then pending in the Senate Judiciary Committee and initially suggested by Justice John Paul Stevens: when a Justice cannot participate in a case because of a recusal or other disqualification, a retired Justice could "come off the bench" to fill in.
As I explain in the new column, there are currently four retired Justices but Justice O'Connor has withdrawn from public life due to dementia. I have nothing but the best wishes for the other three--Justices Kennedy, Souter, and Breyer--but they're all in their mid-80s and perhaps not ideally suited to (or necessarily interested in) being pinch-hitters. Accordingly, as long as I'm making proposals, I add in the column a suggestion that SCOTUS could draw on its farm team (to overplay the baseball analogy) by bringing in substitutes from the federal appeals courts. Doing so would require a statute and quite possibly additional confirmation hearings for the judges who would be eligible to serve as substitutes. The proposal would also almost certainly be defeated in the current Congress, where conservatives would likely view it as undercutting their advantage in the Supreme Court.
Here I want to linger a bit on an argument I discuss briefly in the column and that Professor Tucker and I gave more attention in our article--the constitutional objection that allowing pinch-hitters would violate the requirement of Article III that there be "one Supreme Court." If the Court's membership can change from case to case, the argument goes, there are multiple Supreme Courts. The article and column both contend that this view attempts to squeeze more juice out of "one Supreme Court" than the text or the history--including past Congressionally-imposed changes in jurisdiction, size, and additional duties such as Circuit riding--can support.
But now note that the so-called unitary executive theory has no better textual support than the parallel "unitary Supreme Court" theory. What's that? It's a theory--or actually a family of theories--about constitutional limits on statutory constraints on the President.
There are stronger and weaker versions of the unitary executive theory. A characteristic use of it imposes strict limits on the ability of Congress to insulate federal officials who exercise some form of executive power from at-will Presidential removal. Justice Scalia's dissent in Morrison v. Olson, which upheld an independent counsel who could not be removed from office except for good cause, is a classic example. Even stricter versions of unitary executive theory forbid all independent agencies. The most extravagant version of unitary executive theory goes beyond placing limits on the President's removal power. As expounded by the George W. Bush administration, the unitary executive forbids even statutory limits on what the President may do in the exercise of his powers--such as torturing captured enemy combatants. (For an intriguing argument that moderate unitary executive theory is difficult to disentangle from this more extravagant and expansive form, see this 2010 essay by Professor Julian Ku.)
Is there a sound textual basis for any version of unitary executive theory? Not necessarily. Indeed, in one respect, unitary executive theory has a weaker textual basis than even unitary Supreme Court theory. Consider the difference between the vesting clauses of Articles III and II: "one Supreme Court" versus "a President." Although the indefinite article "a" is singular rather than plural, the word "one" connotes singularity or unity to a greater extent. Admittedly, however, the rest of the Article III vesting clause points in the other direction. It divides the judicial power among the one Supreme Court and such lower courts as Congress may choose to ordain and establish. Article II's vesting clause vests the entire executive power in a singular President.
Or does it? The rest of Article II makes unmistakably clear that the President does not act alone. It refers to Cabinet Secretaries ("the principal officer in each of the executive departments"), military officers, and other officers who serve within the executive branch. And unlike the lower courts--whose very existence depends on Congressional action (pursuant to the Madisonian compromise)--Article II and the rest of the Constitution make clear that, while Congress has some discretion over exactly what agencies and executive offices to create, the government requires the existence of such executive officers in order to function.
In light of the Constitution's evident assumption that there will be executive officers in the government besides the President, the vesting clause of Article II cannot be understood to vest the entire executive power in the President, for if it does, then what powers are those other executive officers exercising? Surely not legislative or judicial power.
Now a supporter of the unitary executive would at this point say that the other executive officers exercise powers delegated by the President. But we also commonly say that executive officers exercise powers delegated by Congress, to whom they owe the very existence of their particular offices and their particular powers.
To be clear, I'm not saying that there might not be good reasons in some contexts to conclude that the Constitution restricts Congress's power to prevent Presidential removal of particular federal officers. As Professor Buchanan and I argued in our 2016 article on Federal Reserve independence, certainly as a policy matter if not necessarily as a constitutional matter, Congress should have some good functional reason for making any particular federal agency independent.
But the text of the Constitution is not a source of those reasons. The only removal mechanism provided by the text is impeachment. Considerations of constitutional structure, function, and history can contribute to an account of the other ways in which federal officers are permissibly removed and the scope of Presidential power more broadly. However, the use of the indefinite article "a" in the vesting clause of Article II is too thin a reed to support any such account.