Fragmented Features of the Constitution’s Unitary Executive

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