On the Unitary Executive Doctrine

 

Some of my students have been asking about the president's recent executive order, claiming unprecedented control over the bureaucracy, and, frankly, whether they should be worried that this portends the end of American democracy. The first thing to know is that the unitary executive theory, on which this executive order is based, is not completely out to lunch as a constitutional legal argument. But it is one that has not been taken seriously by the courts, nor by politicians or legal scholars, for a long time now. Here is my explanation of the history behind this.
 
American society and economy became much more complex over the last two centuries. Congress consequently has felt the need, since the late 1800s, to pass laws and create policies that are very complicated and require a lot of bureaucracy for their implementation. Some examples of such laws and polices are those that created the FCC, the Federal Reserve, the Social Security Administration, the EPA, etc.

This historical reality poses two basic problems:

1. There is some danger of Congress giving their lawmaking power away to POTUS when they pass laws such as these, which are necessarily somewhat vague laws that are attempting to regulate complexly inter-connected economic and social realities. Such laws necessarily leave a lot of discretion to the Executive Branch. This tends to make way for "rule by executive order." There is an important constitutional principle called the non-delegation doctrine, which holds that Congress cannot give its lawmaking power to another entity/another branch of government. Congress giving away its power may seems like an outlandish scenario, but in 1933 the German Parliament passed a law doing just that--giving all lawmaking power to Hitler, thereby effectively ending the Weimar Republic and inaugurating a dictatorship. In smaller or more gradual ways, passing vague laws with complex regulatory mandates, thereby leaving a great deal of regulatory discretion to the President, can violate the same principle of non-delegation.

2. There is also danger in the "spoils system", which is when presidents reward donors with powerful positions in a bureaucracy made powerful by the passage of such laws. The spoils system was rampant in the late 1800s and early 1900s, and the original "progressives" tried to institute reforms to get rid of that corrupt way of doing things. Imagine if the president were able to hire and fire the chair of the Federal Reserve at whim, and give that position to whoever paid them the most money in campaign donations (or in direct bribery). If presidents had that much power over the Federal Reserve, they could order the Fed Chair to lower interest rates right before their re-election (to juice the economy), even if doing so would send the country into a depression a few years down the road.

So, as a way of:

1. getting rid of the corrupt spoils system and 

2. also avoiding delegating too much legislative power directly to the president, 

Congress made the heads of some bureaucracies non-political appointees, and restricted POTUS's ability to fire the heads of the bureaucracies without cause. Many officials within the Executive Branch have in this way been given some measure independence from the President, although Presidents still can exert some control over the agencies. Congress in this way created the “independent agencies” in the Executive Branch.

You can find online a recent clip online of the Fed Chair Jerome Powell saying “Not permitted under the law.” This is in reference to the threat that Trump may try to fire him without due cause.

Some have said that all of this, over the course of the last 150 years, this has created a fourth branch of government—the bureaucracy—which (they say) is not democratically accountable to the people. That concern is not silly. Woodrow Wilson was already concerned about the "4th Branch of Gov't" in the early 1900s. However, for most of American history, most politicians, scholars, and Supreme Court Justices have been friendly to Congress's power to make agencies independent. The argument against those who see the independent bureaucracy as out of democratic control is to point to:

1. The control the President does still have,

2. The fact that the Supreme Court can check the agency’s actions against statutes and the Constitution, 

3. And most importantly, the role of the Congress that created them; Congress has the power to oversee and investigate agency actions, and to dissolve the agencies. An act of Congress created the agencies, and an act of Congress can destroy them.

What is happening now is the current president is trying to assert an absolute or "unitary" form of authority over those agencies. His official argument is that the "independent agencies" are unconstitutional. Assumedly this means they have been unconstitutional for many decades. And not only that, the argument is that this situation is undemocratic, because the heads of these agencies are not elected. Instead they are appointed and in some cases they serve long terms during which they cannot be easily fired by the President, insulating their bureaucratic power from the election cycle. That is Trump’s argument, though Russ Vought is said to be the brains behind this. Trump and his movement have been complaining for some time about the bureaucracy, as part of what they mean by "the deep state.” The unitary executive doctrine is a direct constitutional attack on it.

This would seem to set up a power struggle between Congress and the President. But the Republican majorities in Congress are hesitant to engage in that struggle because of Trump’s popularity with the Republican voter base.

The reason why this is so alarming to many people who understand the American constitutional order is not because the unitary executive theory is blatantly unconstitutional. Even though very few judges, political leaders, and scholars of Constitutional law agree with it, the unitary executive theory does have a leg to stand on as a textual interpretation of Article One of the Constitution. It is true that the executive order Trump has issued is unlawful according to the statutes Congress passed to create the independent agencies, but the White House is arguing that the parts of those laws that makes the agencies independent is unconstitoutional. 

But the reason why the executive order is alarming is because it upends the balance of power that has been established over the last 150 years, which has allowed the Federal Government to pass big, complex federal laws, creating a big complex bureaucracy, (to solve our big, complex, modern problems like water pollution and economic depressions) without giving the president an inordinate (and possibly fatal to the republic) amount of power. The presidency has, over the last 200 years, gained so much power in the system compared to the other branches already there is reason to worry about what would happen to the checks and balances--and whether the republic would ultimately survive as a republic--if we now undo the checks on the spoils system and give POTUS unitary executive power to directly control the agencies.

The danger is compounded by the fact that Donald Trump has ignored many anti-corruption norms. Journalists have pointed out that Trump has set up ways for foreign officials and anyone else to bribe him—i.e. through his businesses, hotels, and now Trumpcoin, etc. I think most legal scholars agree such things are at least potential violations of the Hatch Act, but Trump has shown that laws like the Hatch Act that try to control the president are largely unenforceable against a president with strong party support.

The apparent quid pro quo for Mayor Adams of New York is a particularly brazen instance of what would normally be seen as classical corruption for purposes of gaining political power. The official argument of the Trump administration concerning Mayor Adams is not that he is innocent, but rather that immigration is a national emergency, and that it is more in the interest of the nation to suspend the charges so that Adams can continue working as mayor to deal with the migrant crisis. This argument would probably be more compelling if Trump’s DOJ had chosen to drop the charges altogether, but instead they are leaving the threat of prosecution in place to coerce Adams into doing the administration’s will on immigration policy. This is so highly unusual and so contrary to any understanding of acceptable executive action, many federal officials, including conservative ones appointed by Trump, have quit their jobs so they do not have to be implicated in these actions. So, these are some of the reasons why many people are expressing alarm about the basic structures of American democracy right now.