The Unitary Executive: Past, Present, Future

Forthcoming, Supreme Court Review

Harvard Public Law Working Paper No. 20-32

27 Pages Posted: 4 Aug 2020 Last revised: 3 Dec 2020

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Adrian Vermeule

Harvard Law School

Date Written: August 3, 2020

Abstract

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

Suggested Citation

Sunstein, Cass R. and Vermeule, Adrian, The Unitary Executive: Past, Present, Future (August 3, 2020). Forthcoming, Supreme Court Review, Harvard Public Law Working Paper No. 20-32, Available at SSRN: https://ssrn.com/abstract=3666130 or http://dx.doi.org/10.2139/ssrn.3666130

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Harvard University - Harvard Kennedy School (HKS) ( email )

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Adrian Vermeule

Harvard Law School ( email )

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Cambridge, MA 02138
United States

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