The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller

85 Pages Posted: 7 Feb 2020 Last revised: 30 Jan 2021

Date Written: February 6, 2020

Abstract

This Article examines the departmental structure of the executive branch, which facilitates, channels, and delimits the exercise of executive power. This structure is grounded in the text of the Constitution, which refers to “Department[s]” in the Necessary and Proper Clause, Appointments Clause, and Opinions Clause. The concept of the department also played a key role in the Framers’ constitutional theory, referring to units of government that instituted the system of checks and balances. The developed structure of our administrative state implements the scheme that constitutional text and theory outlined. Legislation, case law, and executive branch practice have constructed departments within the executive branch as durable repositories of authority that distribute and rationalize power. This institutional infrastructure has been obscured by debates concerning the “unitary executive,” which focus on the president’s power to direct and remove particular officials. Departmental protections against official arbitrariness have been tested in recent events, such as the special counsel investigation, the effort to add a citizenship question to the census, and controversies concerning the leadership of the Consumer Financial Protection Bureau. The departmental structure of executive power must be maintained with renewed investment from each of the constitutional branches.

Keywords: administrative law, constitutional law, executive power

JEL Classification: K23

Suggested Citation

Emerson, Blake, The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller (February 6, 2020). Yale Journal on Regulation, 38 no. 1 (2021), UCLA School of Law, Public Law Research Paper No. 21-06, Available at SSRN: https://ssrn.com/abstract=3533508 or http://dx.doi.org/10.2139/ssrn.3533508

Blake Emerson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
1242 Law Building
Los Angeles, CA 90095
United States

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