administrative law; executive power; separation of powers; unitary executive theory
With the benefit of hindsight, the Roberts Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board marked the arrival in the U.S. Supreme Court of what has aptly been called the “separation-of-powers counterrevolution.” For the first time in history, the Court voided statutory criteria limiting the removability of a subordinate officer by a principal officer within the executive branch. Since then, the Court has crafted an increasingly complex separation-of-powers jurisprudence aimed at protecting the President’s supposed Article II authority to control subordinate administrators. Underlying this jurisprudence is the Court’s supposition that, constitutionally speaking, executive branch administrators “wield executive power on behalf of the President in the name of the United States,” and thus the powers that administrators exercise achieve “legitimacy and accountability to the public” only “through ‘a clear and effective chain of command’ down from the President.”
I have long argued that the “unitary executive theory” that informs this campaign in the separation-of-powers counterrevolution is, to borrow a Scalian rhetorical trope, “wrong, wrong, wrong.” It is based on a wrongheaded approach to constitutional interpretation. It misconstrues our founding history and the original meaning of constitutional text. And it sows the seeds of a vision of the presidency that is dangerously authoritarian—a vision no longer merely hypothetical in the wake of the Trump administration. In contrast, I have proposed that courts resolve the Constitution’s ambiguities regarding the separation of powers in ways that advance checks and balances and enhance Congress’s capacities to structure, regulate, and oversee the exercise of executive power.
Peter M. Shane,
Concerted Civic Administration,
92 Fordham L. Rev. 551
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss2/9