Nondelegation and the Unitary Executive

Abstract

Americans have always mistrusted executive power, but only recently has "the unitary executive" emerged as the bogeyman of American politics. The idea seems ominous today because so many functions have been allocated to the now-fragmented executive branch that reuniting it under presidential leadership seems to the present generation both to enhance presidential authority unimaginably and to create an unmanageable administrative structure. We suggest the unitary executive has fallen into ill repute and apparent obsolescence not because of an executive bent upon autocracy but because of a legislature freed from the constraints of the separation of powers. Complementing the Constitution's positive grant of authority to the President is the understanding that the other branches would be confined to their own respective spheres. A necessary corollary of the theory of the unitary executive, then, finds expression in the nondelegation doctrine – the idea that the Congress cannot delegate its lawmaking powers to the executive or the judiciary.

Keywords: nondelegation doctrine, unitary executive