president; constitutional law; unitary executive; legal history; public law; legal theory; founding; Article II
This Essay introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that the President’s absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Essay reconsiders the approval power’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Congress shows that the founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force nonremovable subordinates to initiate regulatory action implementing superiors’ preferred policies.
Early practices surrounding approval power offer further evidence against originalist arguments for a unitary executive President with absolute control over subordinate officers. At the founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decision-making power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances, approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. Statutory approval permissions reflected the understanding that the President and other superior officers would exercise partial but not absolute control over subordinates’ execution of the laws.
Christine Kexel Chabot,
The President's Approval Power,
92 Fordham L. Rev. 373
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss2/2