The Unitary Executive and State Administration of Federal Law
45 University of Kansas Law Review, 1997.
Posted: 15 Jul 1997
Congress frequently encourages states to become regulatory partners in federal programs, sometimes by threatening to preempt the existing regulations of non-participating states, and other times by rewarding participating states with substantial monetary subsidies. Less frequently, Congress orders rather than invites state officials to regulate in a desired manner, in essence coercively employing states as administrative arms of the federal government. The Supreme Court will revisit this term (in Printz v. U.S.) the question whether and to what extent such congressional "commandeering" of state officials violates principles of federalism.While the debate over commandeering has thus far focused exclusively on federalism principles, commandeering implicates separation of powers principles as well. Several scholars have recently rearticulated the "unitary executive theory" of Article II, arguing that Article II vests the power to execute federal law solely in the President of the United States. Unitarians do not maintain that the President must personally execute all laws; Congress may establish an administrative bureaucracy and identify particular officials to assist the President in carrying out legislatively prescribed tasks. But, unitarians argue, such officials must always remain subject to the President's direction. On the surface, this unitary executive theory appears to be implicated when Congress conscripts or even authorizes state officials to implement federal programs. Unless these state officials are subject to presidential supervision, Congress violates Article II by cutting the President out of the execution loop. Thus, principles of separation of powers, in addition to principles of federalism, govern the validity of state administration of federal law.In this symposium contribution, I assume the validity of the unitary executive theory and explore some of its separation of powers implications for the commandeering debate. I focus on two question. The first concerns remedy: If Article II means that unsupervised state administration of federal law is unconstitutional, what is the proper remedy for statutes, such as the Brady Act, that authorize or even mandate such state activity? Should the statutes be invalidated, or should the President be granted authority to supervise state officers implementing such statutes? The second question concerns scope: What counts as "state administration of federal law" for purposes of the unitary executive theory? Does the unitary executive theory call into question only state administration of federally-defined law (such as the Brady Act), or a wider variety of cooperative federal-state programs such as welfare and Medicare as well?
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