Fragmented Features of the Constitution’s Unitary Executive

23 Pages Posted: 22 Feb 2010

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: 2009

Abstract

With their focus on the originalist bona fides of the unitary executive and the modern administrative state’s numerous violations of the theory, unitary executivists have neglected the Constitution’s various constraints on the President’s ability to control law execution and the extent to which Congress can make the task of presidential control difficult, if not impossible. This short piece aims to fill that void. Part I outlines the fragmented features of the Constitution’s unitary executive. Part II describes how the President’s control of the executive branch is somewhat dependent upon Congress. In particular, it discusses how Congress might thwart and tame the attempts by the Executive Office of the President to control agency decision making. Part III addresses the extent to which recent regulatory review procedures are consistent with constitutional constraints on the unitary executive and concludes that, even from the perspective of the theory of the unitary executive, these procedures are too “unitary.”

Keywords: Offices, Officers, President, Congress, Unitary Executive, Regulatory Review, White House Staff, Presidential Power, Executive Power, Appointments, Appropriations, Removal, 12866, Bush, Clinton, Regulatory Policy Officers

Suggested Citation

Prakash, Saikrishna, Fragmented Features of the Constitution’s Unitary Executive (2009). Willamette Law Review, Vol. 45, pp. 101-123, 2009; Virginia Public Law and Legal Theory Research Paper. Available at SSRN: https://ssrn.com/abstract=1557172

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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